Gulf Oil Company v. Bernard Joint Appendix

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Date is approximate.
Impact area
- Economic Justice
Topic
- Economic Justice
Matter
- Gulf Oil Company v. Bernard
Case
- Gulf Oil Company v. Bernard
U.S. state
- Texas
Collection
- Brief Collection
Taxonomy
Identifier
- 83bcdfef-b49a-ee11-be36-6045bdeb8873
Cite this item

Brief Collection, LDF Court Filings. Gulf Oil Company v. Bernard Joint Appendix, 1980. 83bcdfef-b49a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/61ff6d86-4c0f-4d00-a0e7-ac5f494af4c5/gulf-oil-company-v-bernard-joint-appendix. Accessed May 13, 2025.

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    NO. 80-441

IN THE

jiuprattp Court of iht ffinihb
October Term, 1980

GULF OIL COMPANY, ET AL„ 
Petitioners,

v.
WESLEY P. BERNARD, ET AL., 

Respondents.

On Writ Of Certiorari To The 
United States Court Of Appeals 

For The Fifth Circuit

JOINT APPENDIX

Wm. G. D uck*
Susan R. Sewell 
P.O. Box 3725 
Houston, Texas 77001 
(713) 754-2953
Counsel for Petitioner 
Gulf Oil Company
Gael A. P arker*
449 Stadium Road 
Port Arthur, Texas 77640
Counsel for Petitioner 
International and Local Unions

J ack Greenberg 
P atrick O. P atterson*
10 Columbus Circle, Suite 2030 
New York, New York 10019 
(212) 586-8397
Barry L. Goldstein
806 15th Street, N.W., Suite 940
Washington, D.C. 20005
Ulysses Gene  T hibodeaux
425 Alamo Street
Lake Charles, Louisiana 70601
Counsel for Respondents

* Counsel of Record

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

Petition for Certiorari Filed September 17, 1980
Certiorari Granted December 8, 1980

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INDEX

Chronological List of Relevant Docket Entries ....................
All Docket Entries .................................................................
Complaint, Filed May 18, 1976 ..............................................
Motion By Gulf To Limit Communications With Any Po

tential or Actual Class Member, Filed May 27, 1976 . . .
Memorandum in Support of Gulf’s Motion To Limit 

Communications With Any Potential or Actual Class 
Member .........................................................................

Exhibit A—Agreement Between the U. S. Equal Em
ployment Opportunity Commission, Gulf Oil Com
pany—U.S. and Office For Equal Opportunity, U.S. 
Department of the Interior, dated April 14, 1976 . . .

Exhibit A—List of employees (Omitted)
Exhibit B—List of Employees (Omitted)

Exhibit B—Letter from William G. Duck to be read to 
Actual or Potential Class Members, dated May 25, 
1976 ...............................................................................

First Order Limiting Communications With Any Potential 
or Actual Class Member, Filed May 28, 1976 ................

Motion of Gulf Oil Corporation To Modify Order Limiting 
Communications, Filed June 8, 1976 ................................

Memorandum in Support of Gulf Oil Corporation’s 
Motion to Modify Order ............................................

Exhibit A—Agreement Between the U. S. Equal Em
ployment Opportunity Commission, Gulf Oil Com
pany—U.S. and Office For Equal Opportunity, U.S. 
Department of the Interior, dated April 14, 1976 ..

Exhibit A—List of Employees (Omitted)
Exhibit B—List of Employees (Omitted)

Exhibit B—Letter from William G. Duck to be read to 
Actual or Potential Class Members, dated May 25, 
1976 ...............................................................................

Exhibit C—Affidavit of Herbert C. McClees, dated 
June 3, 1976 .................................................................

Exhibit D—Affidavit of Gerald C. Williams—June 4, 
1976 ...............................................................................



II

Plaintiffs’ Memorandum of Law In Opposition To Defend
ant Gulf Oil Company’s Motion To Limit Communica
tions With Any Potential or Actual Class Member, Filed 
June 10, 1976 .......................................................................  80

Exhibit A—Copy of First Order Limiting Communica
tions (Omitted)

Exhibit B—Opinions and Orders in Jimmy L. Rogers 
and John A. Turner v. United States Steel Corpora
tion, et al. v. Honorable Hubert I. Teitelbaum,
United States Court of Appeals for the 3rd Circuit,
No. 76-1340 (Omitted)

Exhibit C—Letter from Equal Employment Opportun
ity Commission to Wesley Bernard, dated February 
25, 1975 (Omitted)

First Supplemental Memorandum In Support of Gulf Oil 
Corporation’s Motion To Modify Order, Filed June 16,
1976 .......................................................................................  92

Exhibit A—§ 1.41 of Manual for Complex Litigation . . 97
Exhibit B and Appendix I—Proposed Order to Limit

Communications ...........................................................  99
Plaintiffs’ Memorandum of Law in Opposition To Defend

ant Gulf Oil Company’s Motion To Modify Order, Filed 
June 17, 1976 .............................................................................  105

Exhibit A—Affidavit of Barry L. Goldstein, dated June
16, 1976 ............................................................................. I l l

Exhibit B—Affidavit of Ulysses Gene Thibodeaux,
dated June 16, 1976 .........................................................  115

Exhibit C—Affidavit of Stella M. Morrison, dated
June 17, 1976 .....................................................................  118

Motion By Defendant, Gulf Oil Corporation To Dismiss
Complaint, Filed June 17, 1976 ............................................  121

Order Granting Motion of Gulf Oil Corporation To Modify 
First Order Limiting Communications, Filed June 22,
1976 ............................................................................................. 124

Appendix I—Notice from Clerk of Court to Employees
Receiving Conciliation Benefits .........................................  128



Ill

Page

Plaintiffs’ Motion For Permission To Communicate With
Members of the Proposed Class, Filed July 6, 1976 ........  130

Exhibit A—Proposed Notice To Potential Class Mem
bers .................................................................    1^2

Exhibit B—Order Limiting Communications, Filed 
June 22, 1976 (Omitted)

Memorandum of Law In Support of Plaintiffs’ Motion 
For Permission To Communicate With Members of 
the Proposed C lass......................................................... 134

Memorandum On Behalf of Gulf Oil Corporation In Opposi
tion To Plaintiffs’ Motion For Permission To Communi
cate With Members of the Proposed Class, Filed July 
IS, 1976 ..............................................................................  139

Plaintiffs’ Amended Complaint, Filed July 19, 1976 ........... 146
Exhibit A—Notice of Right to Sue Within Ninety Days

to Wesley P. Bernard, dated June 11, 1976 ..............  155
Exhibit B—Notice of Right to Sue Within Ninety Days 

to Hence Brown, Jr., dated June 11, 1976 ................  156
Order Denying Plaintiffs’ Motion For Permission To Com

municate With the Proposed Class, Filed August 10, 1976 157
Report to the Court by Gulf Oil Corporation of Individuals 

Who Have Accepted Benefits Under the Conciliation 
Agreement, Filed September 2, 1976 ....................................  158

Exhibit A—List of Employees Who Accepted Concilia
tion Benefits .................................................................  160

Exhibit B—List of Employees Who Failed to Accept
Conciliation Benefits ................................................. 168

Order Granting Summary Judgment For the Defendants,
Filed January 11, 1977 . ................   170

Opinion of Court of Appeals, Filed June 15, 1979 .............. 175
Order Granting Rehearing En Banc, Filed September 27,

1979 .......................................................................................  229
Opinion of Court of Appeals En Banc, Filed June 19, 1980 231
Judgment of Court of Appeals Rehearing En Banc, Filed

July 17, 1980 .......................................................................  277
Order of Supreme Court of the United States allowing Cer

tiorari, Filed December 8, 1980 ............................................ 279



1

CHRONOLOGICAL LIST OF 
RELEVANT DOCKET ENTRIES

May 18, 1976— Plaintiffs’ original petition filed in U.S. 
District Court for Eastern District of Texas, Beaumont 
Division.

May 27, 1976—Defendant Gulfs motion to limit com
munications with any potential or actual class member 
filed.

May 28, 1976— Order signed by Judge Steger limiting 
communications with any potential or actual class mem
bers.

June 8, 1976—Defendant Gulfs motion to modify 
order limiting communications filed.

_r) June 11, 1976—Hearing held on motion to modify
'  order limiting communications.

June 17, 1976—Motion by defendant Gulf Oil Cor
poration to dismiss complaint filed.

June 22, 1976—Order entered by Judge Fisher modify
ing Judge Steger’s order limiting communications with 
any potential or actual class members.

June 30, 1976—Notice mailed to Gulfs Port Arthur, 
Texas, refinery employees as per order of June 22, 1976.

July 1, 1976—Plaintiff’s motion to amend complaint 
filed.

July 6, 1976—Plaintiffs’ motion for permission to com
municate with members of the proposed class filed.

July 19, 1976—Order entered permitting plaintiffs to 
file amended complaint.

July 28, 1976—Motion by defendant Gulf Oil Cor
poration to dismiss amended complaint filed.

July 30, 1976—Defendant Oil Chemical and Atomic 
Workers’ International Union, Local Union No. 4-23, 
response to plaintiffs’ amended complaint filed.



2

August 10, 1976—Order entered denying plaintiffs’ 
motion for permission to communicate with the proposed 
class.

August 25, 1976—Oil, Chemical and Atomic Workers 
International Union and Local No. 4-23 of the OCAW 
joins defendant Gulf Oil Company in its motion to 
dismiss.

September 2, 1976— Report to the court by Gulf Oil 
Corporation of individuals who have accepted benefits 
under the conciliation agreement.

September 24, 1976—Hearing held on defendant’s 
motion to dismiss.

November 29, 1976—Order entered that motion to 
dismiss filed by defendant shall be treated as motion for 
summary judgment and that parties should submit all 
pertinent materials to said motion by January 3, 1977.

January 11, 1977-—Order that summary judgment be 
granted for the defendants as to both the class action 
and any individual claims of discrimination by the plain
tiffs.

February 9, 1977—Plaintiffs’ notice of appeal filed.
June 15, 1979—Opinion of the Court of Appeals for 

the Fifth Circuit.
September 27, 1979—Order entered granting rehear

ing en banc in the Court of Appeals for the Fifth Circuit.
June 19, 1980—Opinion of the Court of Appeals 

en banc.
July 17, 1980—Judgment of Court of Appeals re

hearing en banc.
December 8, 1980—Order entered by Supreme Court 

of the United States allowing certiorari.



3

5-25-76

5-27-76

5-27-76

5-28-76

5- 28-76

6- 7-76

DATE
5-18-76

DOCKET ENTRIES 
NR. PROCEEDINGS
I COMPLAINT

Issued Summons and delivered to 
U. S. Marshal, Beaumont, Texas.

II  Marshal’s Return on Summons to Gulf
Oil Company, served to R. B. Short, 
Ref, Manager, on 5-24-76 at 3:50
p.m. $9.00

12 MOTION by Gulf to Limit Communi
cations with any Potential or Actual 
Class Member submitted by Atty., 
Joseph H. Sperry for Defendant, 
Gulf Oil Company.

16 MEMORANDUM in Support of Gulfs 
Motion to Limit Communications 
with any Potential or Actual Class 
Member.

20 ORDER signed by Judge Steger on Mo
tion by Gulf to Limit Communica
tions with any potential or actual 
class member. This ORDER shall be 
effective until Judge Fisher returns 
and can hear the matter upon formal 
motion. Attys. of Record apprised.

V.74.P.10
22 Marshal’s Return on Summons, served 

to Mr. Parker on 5-26-76 at 12:10 
p.m. $9.00

Hearing on Motion by Gulf Oil to Limit 
Communications with any potential 
or actual class member for Friday, 
June 11, at 10:00 a.m. by Judge 
Fisher. Attys. of Record notified by 
telephone Monday, June 7, 1976, and 
follow-up letter.



4

DATE NR. PROCEEDINGS
6-8-76 23 NOTICE OF MOTION TO MODIFY 

ORDER by Defendant.
6-8-76 24 MEMORANDUM IN SUPPORT OF 

GULF OIL CORPORATION’S MO
TION TO MODIFY ORDER.

6-8-76 38 MOTION TO MODIFY ORDER. 
Attys. of Record apprised.

6-10-76 40 MEMORANDUM OF LAW IN OP
POSITION TO DEFENDANT GULF 
OIL COMPANY’S MOTION TO 
LIMIT COMMUNICATIONS WITH 
ANY POTENTIAL OR ACTUAL 
CLASS MEMBER, by Plaintiff.

6-10-76 81 Defendant, Oil, Chemical and Atomic 
Workers International Union, Local 
Union No. 4-23 Response to Plain
tiff’s ORIGINAL COMPLAINT.

6-16-76 85 FIRST SUPPLEMENTAL MEMO
RANDUM IN SUPPORT OF GULF’s 
MOTION TO MODIFY ORDER.

6-17-76 97 MOTION by Defendant Gulf Oil Cor
poration to Dismiss Complaint. At
torneys of Record apprised.

6-17-76 99 MEMORANDUM OF LAW IN OP
POSITION TO DEFENDANT GULF 
OIL COMPANY’S MOTION TO 
MODIFY ORDER, by Plaintiff.

6-22-76 117 ORDER that motion of Gulf Oil Cor-
poration to modify Judge Steger’s Or
der is granted and that Judge Steger’s 
Order of May 28, 1976 be modified. 
s/Judge Fisher. Attorneys of record 
apprised. V.74JP.



5

6- 30-76

7- 6-76

7-6-76

7-15-76

7-19-76

7-19-76
7- 28-76

8- 6-76

DATE
7-1-76
7-1-76

123 MOTION to Amend Complaint.
125 MEMORANDUM OF LAW IN SUP

PORT of Plaintiffs’ Motion to Amend.
128a- Notice (Appendix I) mailed to Port1 
128e Arthur, Texas Gulf Refinery employ

ees as per Order of June 22, 1976.
129 MOTION FOR PERMISSION TO 

COMMUNICATE WITH MEM
BERS OF THE PROPOSED CLASS 
by Plaintiffs. Attys. of Record ap
prised.

135 MEMORANDUM OF LAW IN SUP
PORT OF PLAINTIFF’S MOTION 
FOR PERMISSION TO COMMUNI
CATE WITH MEMBERS OF THE 
PROPOSED CLASS.

142 MEMORANDUM ON BEHALF OF 
GULF OIL CORPORATION IN 
OPPOSITION TO PLAINTIFFS’ 
MOTION FOR PERMISSION TO 
COMMUNICATE WITH MEMBERS 
OF THE PROPOSED CLASS.

150 ORDER granting Plaintiff’s MOTION
TO AMEND COMPLAINT. s/Judge 
Fisher. Attys. of Record Apprised.

V.75,P.44
151 AMENDED COMPLAINT by Plaintiff.
162 MOTION BY DEFENDANT GULF 

OIL CORPORATION TO DISMISS 
AMENDED COMPLAINT. Attys. of 
Record apprised.

164 MEMORANDUM in Support of De
fendant, Gulf Oil Corporation’s, Mo
tion to Dismiss Amended Complaint.

NR. PROCEEDINGS



6

DATE NR. PROCEEDINGS
8-6-76 204 AFFIDAVIT OF NACHA I. MARTI

NEZ with reference to Willie John
son, Sr.

8-6-76 208 AFFIDAVIT OF NACHA I. MARTI
NEZ with reference to Elton Hayes, 
Sr.

8-6-76 210 AFFIDAVIT OF NACHA I. MARTI
NEZ with reference to Rodney Ti- 
zeno.

8-6-76 212 AFFIDAVIT OF NACHA I. MARTI
NEZ with reference to Wesley P. 
Bernard.

8-6-76 216 AFFIDAVIT OF NACHA I. MARTI
NEZ with reference to Willie Whitley.

8-6-76 222 AFFIDAVIT OF HERBERT C. Mc- 
CLEES with reference to Willie Whit
ley.

8-6-76 228 AFFIDAVIT OF HERBERT C. Mc- 
CLEES with reference to Willie John
son, Sr.

8-6-76 231 AFFIDAVIT OF HERBERT C. Mc- 
CLEES with reference to Hence 
Brown.

8-6-76 234 AFFIDAVIT OF NACHA I. MARTI
NEZ with reference to Hence Brown.

8-6-76 238 AFFIDAVIT OF HERBERT C. Mc- 
CLEES with reference to Wesley 
Bernard.

8-30-76 241 DEFENDANT, OIL, CHEMICAL AND 
ATOMIC WORKERS’ INTERNA
TIONAL UNION, LOCAL UNION 
NO. 4-23 RESPONSE TO PLAIN
TIFFS’ AMENDED COMPLAINT.



8-20-76

8- 25-76

9- 2-76

9-2-76

9-14-76

9-24-76

DATE
8-10-76 245 ORDER on Plaintiffs’ Motion for Per

mission to Communicate with the 
Proposed Class is DENIED. s/Judge 
Fisher. Attorneys of Record apprised.

V.75,P.142
246 MEMORANDUM OF LAW IN OPPO

SITION TO DEFENDANT GULF 
OIL COMPANY’S MOTION TO 
DISMISS AMENDED COMPLAINT.

256 OIL, CHEMICAL AND ATOMIC 
WORKERS INTERNATIONAL UN
ION, AND LOCAL 4-23 of the 
OCAW joins, Defendant, Gulf Oil 
Company, in its MOTION TO DIS
MISS. Attys. of Record apprised.

258 REPORT TO THE COURT BY GULF 
OIL CORPORATION OF INDIVID
UALS WHO HAVE ACCEPTED 
BENEFITS UNDER THE CONCI
LIATION AGREEMENT.

273 MOTION FOR ORAL ARGUMENT
ON GULF’S MOTION TO DISMISS. 
Attys. of Record apprised.

274 ORDER that oral arguments on Gulfs
Motion to Dismiss will be set on 
September 24, 1976 at 10:00 a.m. 
Signed by Judge Fisher. Attys. of 
Record apprised. V.76,P.77

Hearing held on Defendant’s Motion to 
Dismiss. Motion taken under Advise
ment. Counsel given to 10-15-76 to 
file Memoranda or Briefs: Deft, given 
to 10-22-76 to file proposed Findings 
of Fact and Conclusions of Law and

7

NR. PROCEEDINGS



8

9- 23-76

10- 7-76 

10-18-76

10-15-76

10-15-76
10-14-76

10-26-76

DATE
Pltf given to 10-29-76 to file objec
tions to such proposed Findings of 
Fact and Conclusions of Law.

275 Plaintiffs’ Supplemental Memorandum 
of Law in Opposition to Defendants’ 
Motion to Dismiss the Amended Com
plaint.

287 Plaintiffs’ Motion for an Order Permit
ting the Appearance of Additional 
Counsel, Patrick O. Patterson, Esq.

289 LETTER BRIEF with regards to De
fendants’ Motion to Dismiss the 
Amended Complaint, by Plaintiffs. 
(Apparently, Original copy was mail
ed to Judge Fisher).

301 Supplemental Memorandum in Support 
of Defendants’ Motion to Dismiss.

315 Affidavit of C. B. Draper.
321 ORDER entered by Judge Fisher grant

ing motion for Patrick O. Patterson, 
10 Columbus Circle, Suite 2030, New 
York, New York 10019 leave to ap
pear as additional counsel for Plain
tiff. Certified copy to all counsel of 
record. V.76,P.274

323 Plaintiffs’ SECOND SUPPLEMENTAL 
MEMORANDUM OF LAW IN OP
POSITION TO DEFENDANTS’ MO
TION TO DISMISS THE AMEND
ED COMPLAINT with proposed 
FINDINGS OF FACT AND CON
CLUSIONS OF LAW.

NR. PROCEEDINGS



9

DATE
10-29-76

11-24-76 
11-24-76

11-24-76

11-24-76
11-29-76

12-17-76

1-3-77

337 Defendants’ SECOND SUPPLEMENT
AL MEMORANDUM OF LAW in 
Support of its Motion to Dismiss the 
Amended Complaint.

343 NOTICE of Motion, by Plaintiffs.
344 MOTION to Join Additional Defend

ants and for Leave to Amend Com
plaint filed by Plaintiffs.
JJF 11-30-76.

355 MEMORANDUM OF LAW in Support 
of Plaintiffs’ Motion to Join Addition
al Defendants and to Amend Com
plaint.

361 AFFIDAVIT of Wesley P. Bernard.
367 ORDER that Motion to Dismiss be

treated as motion for summary judg
ment under Rule 56, F.R.Civ. P. and 
that the parties submit all pertinent 
materials to said motion by 1-3-77, 
JJF Attorneys notified. V.77,P.

368 MEMORANDUM in Support of Gulf’s
Limited Opposition to Plaintiffs’ Mo
tion to Join Additional Defendants 
and for Leave to Amend Complaint. 
JJF 12-17-76.

381 Plaintiffs’ MEMORANDUM in Re
sponse to Order Treating Defend
ants’ Motion to Dismiss as a Motion 
for Summary Judgment. JJF 1-3-77.

NR. PROCEEDINGS



10

DATE
1-11-77

2-9-77

2-9-77

2-18-77

387 ORDER that summary judgment be 
granted for the defendants as to both 
the class action and any individual 
claims of discrimination by the plain
tiffs. JJF s/1-11-77. Attorneys noti
fied. V.78,P.

392 NOTICE OF APPEAL to U. S. Court
of Appeals, Fifth Circuit, by Plaintiffs 
from Order of Dismissal entered on 
January 11, 1977. Certified copy of 
Notice of Appeal mailed to Fifth 
Circuit Court of Appeals, New Or
leans, LA, Jerry Bloxom, U. S. Court 
Reporter, Beaumont, Texas, Judge 
Fisher, and all attorneys of record.

393 AFFIDAVIT of Cecil L. Cain, with
Calcasieu Insurance Agency, Inc. of 
Lake Charles, LA, who has applied 
for a surety bond with the WEST
ERN SURETY COMPANY.

395 BOND for Costs through Western Sure
ty Company of Sioux Falls, SD for 
$250.00.

NR. PROCEEDINGS



11

In The
UNITED STATES DISTRICT COURT

For The Eastern District Of Texas 
Beaumont Division

CIVIL ACTION NO. B-76-183-CA

WESLEY P. BERNARD, ELTON HAYES, SR., 
RODNEY TIZENO, HENCE BROWN, JR., 
WILLIE WHITLEY, WILLIE JOHNSON, 

individually and on behalf of all others 
similarly situated,

Plaintiffs,

v.
GULF OIL COMPANY and OIL, CHEMICAL 
and ATOMIC WORKERS INTERNATIONAL 

UNION, LOCAL UNION NO. 4-23, 
Defendants.

C O M P L A I N T

I.
NATURE OF CLAIM

1. This is a proceeding for declaratory and prelimin
ary injunctive relief and for damages to redress the de
privation of rights secured to plaintiffs and members of 
the class they represent by Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Civil 
Rights Act of 1866, 42 U.S.C. § 1981.



12

II.
JURISDICTION

2. Jurisdiction of this Court is invoked pursuant to 28 
U.S.C. §§ 1334(4), 42 U.S.C. §2000e-5(f), 2201 and 
2202, this being a suit in equity authorized and instituted 
pursuant to the Civil Rights Acts of 1866, 42 U.S.C. 
§ 1981, and 1964, 42 U.S.C. §§ 2000e et seq. The juris
diction of this Court is invoked to secure the protection 
of and to redress deprivation of rights secured by (a) 42 
U.S.C. §§ 2000e et seq., providing for injunctive and 
other relief against discrimination in employment on the 
basis of race and (b) 42 U.S.C. § 1981 providing for the 
equal rights of all persons in every state and territory 
within the jurisdiction of the United States.

III.
CLASS ACTION

3. Plaintiffs bring this action on their own behalf, and 
pursuant to Rule 23 (b )(2 ) of the Federal Rules of Civil 
Procedure as a class action on behalf of those similarly 
situated. The members of the class and/or subclasses 
represented by plaintiffs are: (a) all black employees 
employed by defendant Gulf Oil Company in Port Ar
thur, Texas; (b) all black employees formerly employed 
by Gulf Oil Company in Port Arthur, Texas; and (c) all 
black applicants for employment at Gulf Oil Company 
who have been rejected for employment at said company. 
The requirements of the Federal Rules are met in that:

a. The members of the class are so numerous that 
joinder of all members would be impracticable. 
There are, for example, more than 300 blacks em
ployed by Gulf Oil Company in Port Arthur, Texas;



13

b. There are questions of law and fact common to 
the class. It is alleged herem~that defendants have 
discriminated against virtually every black employed 
by Gulf Oil Company in respect to the terms and 
conditions of their employment;
c. The claims of the plaintiffs are typical of the 
claims of the class and/or subclasses;
d. The plaintiffs will fairly and adequately protect 
the interests of the classes and subclasses. TKeTm 
terests of the plaintiffs are identical or similar to 
those of the class members;
e. The defendants have acted and refused to act on 
grounds generally applicable to the class and sub
classes, thereby making appropriate final injunctive 
and declaratory relief with respect to all members of 
the classes;

f. The questions of law and fact common to the 
members of the class and subclasses predominate 
over questions affecting only individual members; a 
class action is superior to other available methods 
for the fair and efficient adjudication of the con
troversy.

IV.
PLAINTIFFS

4. Plaintiff Wesley P. Bernard is a black citizen of 
the United States and Port Arthur, Texas. Plaintiff Ber
nard has been employed by Gulf Oil Company since 
June 16, 1954. He was hired as a laborer and is presently 
a truck driver.



14

5. Plaintiff Elton Hayes, Sr., is a black citizen of the
United States and Port Arthur, Texas. Plaintiff Hayes 
has been employed at Gulf Oil Company since October 
2, 1946. He was hired as a laborer and is presently a 
boilermaker, having worked at various “helper” positions 
during his employment at Gulf Oil Company.

6. Plaintiff Hence Brown, Jr., is a black citizen of the 
United States and Port Arthur, Texas. Plaintiff Brown 
was hired as a laborer in 1954 and presently works as 
a truck driver.

7. Plaintiff Willie Whitley is a black citizen of the 
United States and Port Arthur, Texas. He was hired in 
1946 as a laborer and retired in October, 1975, as a 
utility man, a classification slightly above a laborer 
classification.

8. Plaintiff Rodney Tizeno is a black citizen of the 
United States and Port Arthur, Texas. Plaintiff Tizeno 
was hired originally as a laborer and is presently a crafts
man at Gulf Oil Company.

9. Plaintiff Willie Johnson is a black citizen of the 
United States and Port Arthur, Texas. Plaintiff Johnson 
was hired as a laborer at Gulf Oil Company.

V.
DEFENDANTS

10. Defendant Gulf Oil Company in Port Arthur, 
Texas (hereinafter simply Gulf Oil) is a corporation 
incorporated and/or doing business in the State of Texas. 
It operates and maintains a manufacturing plant in Port 
Arthur, Texas which produces a variety of oil and petro
leum products and by-products. Gulf Oil is a corporation



15

engaged in interstate commerce, employing more than 
fifteen persons, and is an employer within the meaning 
of 42 U.S.C. §§ 2000e-(b).

11. Defendant Oil, Chemical and Atomic Workers 
International Union, Local Union No. 4-23 is recognized 
as the exclusive bargaining representative of operating 
and maintenance employees for the purpose of collective 
bargaining with respect to rates of pay, wages, hours of 
employment, and other conditions and terms of employ
ment. Local Union No. 4-23 is a labor organization 
within the meaning of 42 U.S.C. § 20QQe-(d),(e).

VI.
STATEMENT OF FACTS

12. Black employees of Gulf Oil are, and have in the 
past, been victims of systematic racial discrimination by 
defendants Gulf Oil and Oil, Chemical and Atomic 
Workers International Union, Local Union No. 4-23. 
Prior and subsequent to July 2, 1965, Gulf Oil engaged 
in policies, practices, customs and usages made unlawful 
by Title VII of the Civil Rights Act of 1964 (42 U.S.C. 
§§ 2000e et seq.) and 42 U.S.C. § 1981 which discrimin
ate or have the effect of discriminating against plaintiffs 
and the classes they represent because of their race and 
color.

13. The methods of discrimination include, but are not 
limited to, intentionally engaging in the following prac
tices:

a. Hiring and Assignment: Gulf Oil unlawfully has 
assigned and continues to assign a disproportionately 
large number of black employees to the Company’s



16

lowest paying, least preferred, and more physically 
demanding jobs;
b. White employees are given preference in initial 
employment and job assignments by Gulf Oil. The 
company utilizes a battery of tests which discrimin
ates or has the effect of discriminating against blacks 
in initial employment with the Company. In addition, 
Gulf Oil maintains a high school diploma require
ment and, on information and belief, other pre-em
ployment criteria which discriminate or have the 
effect of discriminating against black applicants. 
Because of discrimination in hiring and job assign
ment, a disproportionately large number of whites 
have been preferentially hired by Gulf Oil for higher 
paying jobs than blacks with substantially the same 
or better qualifications. Black employees are now, 
and have in the past, been paid less money for harder 
work under less desirable working conditions than 
their white counterparts;
c. The use of a pre-employment test battery is legally 
deficient in one or more of the following ways: (1) 
it is not professionally developed; (2) it has little or 
no relationship to successful job performance; (3) 
it has little or no relationship to the job sought or 
applied for; (4) it exhibits a racial and cultural bias 
against blacks;
d. Defendant company employs a disproportionately 
small number cf blacks in permanent craft positions. 
Blacks have been historically excluded from higher 
paying craft positions by Gulf Oil;
e. Gulf Oil has failed and/or refused to promote 
black employees and “helpers” to journeymen posi-



17

tions, irrespective of their ability to perform the job 
or position sought;

f. As a result of the Company’s racial promotion 
and upgrading practices, “black” lines of progression, 
job classifications and departments have been arti
ficially established and developed with the result that 
blacks have been and are now confined to the lower- 
paying and less-preferred jobs than are their white 
counterparts;

g. Black employees have been denied training, access 
and exposure to craft positions and other instructions 
which are necessary to an upgrade or promotion. 
Blacks who perform the same or comparable work 
as whites are given unequal pay and compensation;
h. On information and belief, Gulf Oil also dis- 
criminatorily denies blacks their full employment 
rights in that it denied blacks who work in largely 
minority occupied jobs or departments, seniority 
rights, opportunities, and privileges. Generally, Gulf 
Oil has refused and/or failed to recognize the full 
seniority rights of its black employees, adversely 
affecting their discharges, training, upgrade, transfer, 
and promotion rights.

g. On information and belief, Gulf Oil has dis- 
criminatorily excluded blacks and has refused and/or 
failed to recruit and train blacks for supervisory, 
technical, professional, and clerical positions;

h. Gulf Oil discriminatorily assesses discipline and 
discharge against black employees for reasons which 
would not be grounds for discipline or discharge of 
whites in similar positions;



18

14. Defendant Oil, Chemical and Atomic Workers In
ternational Union, Local Union No. 4-23 has agreed to, 
acquiesced in or otherwise condoned the unlawful em
ployment practices referred to in paragraph VI(13) 
(a-h), supra.

VII.

EXHAUSTION OF REMEDIES

15. Neither the State of Texas nor the City of Port 
Arthur has a law prohibiting the unlawful practices herein 
alleged.

16. All jurisdictional prerequisites to this action have 
been satisfied. This action is timely commenced under 
both 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981.

VIII.
PRAYER FOR RELIEF

THEREFORE, plaintiffs and the classes represented 
pray as follows:

A. That this Court formally determine, pursuant to 
Rule 23(c) of the Federal Rules of Civil Procedure, that 
this action is maintainable on behalf of the class and/or 
subclasses described in paragraph III (3), supra.

B. That this Court issue affirmative relief as follows:

a. that Gulf Oil be required to institute an active 
recruitment policy;

1. That Gulf Oil be required to canvass the qualifica
tions of all its black employees with the goal to pro-



19

mote all such qualified employees and to eliminate
all present effects of past racial discrimination with
the following provisions:
a. that plaintiffs and the classes be afforded full util

ization of company seniority in bidding for or 
seeking better paying and more desirable jobs;

b. restructuring lines of progression, revision of ap
plicable residency requirements, advanced level 
entry, and job skipping at Gulf Oil Company;

c. training and other assistance as necessary to en
able the plaintiffs and the class to overcome the 
effects of past discrimination;

d. an award of back pay to each plaintiff and class 
member for any financial losses suffered by plain
tiffs and the classes and which are attributable to 
acts of racial discrimination complained of herein;

e. rate protection sufficient to assure that black em
ployees will not be economically discouraged, pre
vented or penalized in their efforts to attain their 
rightful place in Gulf Oil’s employment structure;

f. prospective red circling to alleviate the residual 
effects of any racial discrimination not corrected 
or completely removed by this action;

g. Gulf Oil be required to suspend the use of any and 
all tests or other criteria for promotion or for 
initial employment until said tests or criteria are 
validated in accordance with the Equal Employ
ment Opportunity Commission Guidelines on 
Testing;



20

h. that the defendant Union, Local 4-23, be required 
to file all grievances of its black members of 
Gulf Oil;

i. enter a declaratory judgment that the acts and 
practices complained of are in violation of the 
laws of the United States;

j. that plaintiffs and the classes they represent be 
awarded their complete costs of this action, in
cluding a reasonable attorneys’ fees pursuant to 
42 U.S.C. § 20Q0e-5(k).

k. Grant Plaintiffs and the classes they represent 
such other and further relief as may be necessary 
and proper.

Respectfully submitted,

STELLA M. MORRISON 
Stella M. Morrison 
World Trade Building - Suite 516 
440 Austin Avenue 
Port Arthur, Texas 77640
CHARLES E. COTTON 
348 Baronne Street - Suite 500 
New Orleans, Louisiana 70112
JACK GREENBERG 
BARRY L. GOLDSTEIN 
ULYSSES GENE THIBODEAUX 
10 Columbus Circle - Suite 2030 

New York, New York 10019

Attorneys for Plaintiffs



21

MOTION BY GULF TO LIMIT 
COMMUNICATIONS WITH ANY 

POTENTIAL OR ACTUAL CLASS MEMBER

[Caption Omitted in Printing]

Filed May 27, 1976

Comes now Gulf Oil Corporation (Gulf), a Defendant 
in the above-captioned suit, and moves this Court for 
an order limiting communications by parties to this suit 
and their counsel with any actual or potential class 
members.

In support of this Motion, Gulf has attached a memo
randum brief.

JOSEPH H. SPERRY 
WM. G. DUCK 
P. O. Box 3725 
Houston, Texas 77001 
Telephone: (713) 226-1617

By J. H. SPERRY
Attorneys for Defendant 
GULF OIL CORPORATION

[Certificate of Service Omitted in Printing]



22

MEMORANDUM IN SUPPORT OF GULF'S 
MOTION TO LIMIT COMMUNICATIONS 

WITH ANY POTENTIAL OR ACTUAL 
CLASS MEMBER

[Caption Omitted in Printing]

Filed May 28, 1976

This is a class action suit brought by six individual 
employees of Gulf’s Port Arthur Refinery alleging they 
have been victims of discrimination in violation of Title 
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, 
et seq., and of the Civil Rights Act of 1866, 42 U.S.C. 
§ 1981. The suit was filed on May 18, 1976, and Gulf 
was served with a summons on May 24, 1976.

The issues which have been raised in this lawsuit have 
been the subject of settlement negotiations between Gulf, 
the U.S. Equal Employment Opportunity Commission 
and the Office for Equal Opportunity, U.S. Department 
of the Interior. The negotiations between Gulf and these 
federal agencies to conciliate the issues which now have 
been raised in this action have taken place over a period 
of several years and have resulted in the signing by Gulf 
of a Conciliation Agreement. This agreement, which was 
entered into by Gulf and the Federal Agencies on April 
14, 1976, provided for an award of over $900,000 to 614 
present and former black employees and 29 female em
ployees at Gulf’s Port Arthur Refinery. A copy of this 
Conciliation Agreement is attached hereto as Exhibit A.

As soon as the Conciliation Agreement was finalized, 
Gulf pursuant to the terms of the Conciliation Agree
ment mailed a letter and release, the form of which was



23

approved by the Federal Agencies, notifying all employees 
covered by the Conciliation Agreement that they were 
entitled to an award of back pay and that upon execution 
of the receipt and general release the employees would 
receive the back pay award. Between the time the Con
ciliation Agreement was executed by Gulf, and the date 
the summons was served upon Gulf in this action, ap
proximately 452 employees out of a total of 643 em
ployees entitled to a back pay award had executed the 
receipt and general release and had received their back 
pay checks.

So as to comply with the letter and spirit of Rule 23 
(e), F.R.C.P. and the Canons of Ethics of the Bar Asso
ciation, Gulf immediately upon service of the summons 
suspended all further mailings to actual or potential class 
members and informed all actual or potential class mem
bers who called Gulf that no further communications 
concerning the Conciliation Agreement or the issues 
raised in the lawsuit could be discussed with them until 
the Court so orders. Attached hereto as Exhibit B is a 
copy of the statement which was read to all potential and 
actual class members who called Gulf inquiring about 
these matters.

However, on Saturday, May 22, 1976, four days after 
the Complaint was filed in this action, an attorney for 
the Plaintiffs,_Mr. Ulysses Gene Thibodeaux, appeared 
before approximately 75 actual or potential class members 
ariTmeetmgTnT discussed with” themthe
jssues involved in the case and recom mer^3~loTiose 
employees that the^'gp'T iur-stffl^e r^eipT^nd~^nerS 
le^Se~Much~had been mailed’ro t ^
Conciliation Agreement!nE~TaH7TrTimreported~To'TjuIP



24

that Mr. Thibodeaux advised this group that they should
mail back to Gulf the chec^lhe5riTad feceived slhce~Ee* 
could recover at least double the amount which was paid 
to them under the Conciliation Agreement Tiy prosecuHng~ 
the present lawsuit. - - ..

Gulf believes that this action by the Plaintiffs’ attorney 
is indeed a serious breach of the ethical and legal stand
ards which are imposed upon attorneys under the Canons 
of Ethics and the law. In order to prevent further com
munications of this type by all parties and their counsel 
to this suit, Gulf has moved the Court for an order to 
limit communications with any potential or actual class 
member to this lawsuit. The order which Gulf proposes 
be entered pursuant to its Motion is copies verbatim from 
“Sample Pretrial Order No. 15—Prevention of Potential 
Abuse of Class Actions” contained in the Manual for 
Complex and Multidistrict Litigation, p. 197. This order 
is also identical to many local rules of the United States 
District Courts which have adopted “Suggested Local 
Rule No. 7—Prevention of Potential Abuse of Class Ac
tions” contained in the Manual for Complex and Multi
district Litigation on p. 196.1 It should be noted that the 
Manual for Complex and Multidistrict Litigation suggests 
that such an order be promptly entered in actual and 
potential class action cases unless there is a parallel local 
rule. 1

1. See Local Rules of the U.S. District Court for the Southern 
District of Texas, Rule 6; and the General Rules of the U.S. District 
Court for the Eastern District of Louisiana, Rule 2.12e.



25

By entering the suggested order, this Court will pre
serve the status quo of the case until Judge Fisher returns 
and can assume control and administration of the case. 
In the absence of such an order, Gulf feels that the 
unusual circumstances involved in this case, combined 
with the statements which Plaintiffs’ counsel has already 
made to actual and potential class members, could seri
ously prejudice Gulf In its defense of this case and the 
conciliation efforts which have been conducted by the 
Equal Employment Opportunity Commission and the 
Office for Equal Opportunity, U.S. Department of the 
Interior.

CONCLUSION

In accordance with the above stated authorities, Gulf 
urges the Court to grant its Motion to Limit Communica
tions with any Potential or Actual Class Member.

[Signatures Omitted in Printing]



26

Exhibit A

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION 

Houston District Office 
2320 La Branch, Room 1101 
HOUSTON, TEXAS 77004

AREA CODE 713 
226-5611

CONCILIATION AGREEMENT 

In the Matter of:
U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION

and
Gulf Oil Company—U.S. Charge No. AU68-9-154E
Port Arthur, Texas 

Respondent
and

Office for Equal Opportunity
U.S. Department of the Interior 

Compliance Agency
* * *

A charge having been filed under Title VII of the Civil 
Rights Act of 1964, as amended, by a Commissioner of 
the U. S. Equal Employment Opportunity Commission 
against the Respondent, the charge having been investi
gated and reasonable cause having been found, the parties 
do resolve and conciliate this matter as follows:

[Table of Contents Omitted in Printing]



27

A. GENERAL PROVISIONS

1. It is understood that this Agreement does not con
stitute an admission by the Respondent of any 
violation of Title VII of the Civil Rights Act of 
1964, as amended.

2. The U.S. Equal Employment Opportunity Com
mission hereby waives and releases its cause of 
action against the Respondent under the instant 
charge and covenants not to sue the Respondent 
independently or on behalf of any individual includ
ing, but not necessarily limited to, persons listed 
on Attachments “A” and “B” hereto with respect 
to any matter alleged thereunder, subject to per
formance by the Respondent of the promises and 
representations contained herein.

3. The Respondent understands that the Commission, 
on its own motion, may review compliance with 
this Agreement. As a part of such review, the Com
mission may require written reports concerning 
compliance, may inspect the premises, examine wit
nesses, and examine and copy documents pertinent 
to such review. The Commission agrees that the 
Respondent reserves ail rights and protection af
forded by the Freedom of Information Act, as 
amended.

4. The Respondent reaffirms that all of its hiring, pro
motion practices, classification, assignments, layoffs 
and all other terms and conditions of employment 
shall be maintained and conducted in a manner 
which does not discriminate on the basis of race, 
color, religion, sex or national origin in violation



28

of Title VII of the Civil Rights Act of 1964, as 
amended.

5. The Respondent agrees that it will not knowingly 
practice nor permit its supervisory or other per
sonnel to practice discrimination or retaliation of 
any kind against any person because of his or her 
opposition to any practice declared unlawful under 
Title VII of the Civil Rights Act of 1964, as 
amended, or because of the filing of a charge, or 
giving of testimony or assistance, or participation in 
any manner in any investigation, proceeding, or 
hearing under Title VII of the Civil Rights Act of 
1964, as amended.

6. Recognizing the exception with respect to sex or 
regards toilets, showers and the like, the Respond
ent reaffirms that all facilities on the premises or 
furnished its employees, including recreational op
portunities and all other conveniences and services, 
are available for the use and enjoyment of any em
ployee without regard to race, color, religion, sex 
or national origin; that there is no discrimination 
against any employee on said grounds with respect 
to the use of facilities; and that the notices required 
to be posted by Title VII of the Civil Rights Act of 
1964, as amended, are posted.

B. SETTLEMENT AGREEMENT—BACK PAY

1. Appertaining to back pay, the Affected Class is 
hereby defined as all Negroes employed by the Re
spondent on July 2, 1965, whose seniority date an- 
tecedes January 1, 1957, and all hourly rated 
females employed by the Respondent in its Package 
and Grease Department on July 2, 1965.



29

2. The Commission agrees that a thorough search has 
been made to identify all individuals potentially 
entitled to backpay under this Agreement, that the 
Respondent’s personnel records since the effective 
date of Title VII of the Civil Rights Act of 1964 
have been exhaustively analyzed and that, through 
examination of documents submitted by the Re
spondent, no persons potentially entitled other than 
those listed on Attachments “A” and “B” hereto 
could be found.

3. For the sake of convenience, the Affected Classes, 
as shown on Attachments “A” and “B”, shall be 
designated and hereinafter referred to as Group 
“A” and Group “B” respectively.

4. The Respondent agrees that all individuals identi
fied as belonging to Group “A” or Group “B” shall 
immediately be awarded upon notification of ac
ceptance as described below, such back pay as is 
hereinafter provided:
a. The Respondent represents that it has set aside 

a sum for purposes of fulfilling all back pay obli
gations which are or might have been incurred 
as a result of employment practices complained 
of in the instant charge or which were treated 
in the Commission’s Letters of Determination or 
Reconsideration of Determination thereon, in
cluding matters found by the Commission to be 
like and related.

b. The United States Equal Employment Oppor
tunity Commission concurs that the sum set aside 
is sufficient to meet the purposes of providing



30

equitable relief to designated members of Group 
“A” or Group “B” and stipulates that $35,000.00 
of said amount may be reserved and held in a 
special account by the Respondent for a period 
of five years. The Commission agrees that, inso
far as matters encompassed by this Agreement 
are raised to issue in the future, the Respondent 
shall utilize its special account to dispose of con
tingent liabilities, and that any undispensed 
funds remaining, after passage of the account’s 
established five year life, shall be returned to the 
Respondent’s general control for unrestricted use.

c. In formulating the specific relief due each indi
vidual hereunder credits will be awarded as 
follows:
(1) To members of Group “A”, $5.62 for each 

month of continuous service with the Re
spondent prior to January 1, 1957, and 
$2.81 for each month of continuous service 
thereafter until date of termination or until 
January 1, 1971, whichever occurs earlier.

(2) To members of Group “B”, $5.62 for each 
month of continuous service with the Re
spondent until date of termination or until 
January 1, 1975, whichever occurs earlier.

d. Back pay awards previously tendered to members 
of Group “A” under the Respondent’s Agreement 
dated May 7, 1971, with the Office for Equal Op
portunity, United States Department of the Interior 
shall be deducted from amounts hereunder due 
those same individuals.



31

e. Back pay awards will be subject to standard 
deductions for F.I.C.A. and Federal Income Tax 
Withholding.

f. Upon accepting a back pay award, each Group 
“A” or Group “B” member will be required to 
execute a general release to the Respondent for 
any and all claims against the Respondent as a 
result of events arising from its employment 
practices occurring on or before the date of re
lease, or which might arise as the result of the 
future effects of past or present employment 
practices.

g. Prior to tendering back pay awards, the Respond
ent agrees to notify in writing each member be
longing to Group “A” or Group “B” that he or 
she has been so identified, and of the general 
formula used to calculate awards and of the con
ditions of waiver or release required in accepting 
back pay. Each member shall be furnished a 
form on which to notify the Respondent, within 
thirty days, whether such member desires to ac
cept or decline back pay consideration. A failure 
on the part of any member to respond within 
thirty days shall be interpreted as acceptance of 
back pay. It is agreed that the form of notifica
tion to be utilized shall be reviewed and signed 
by a Commission representative prior to being 
implemented or disseminated.

h. In the event that a member of Group “A” or 
Group “B” is deceased, notice shall be given and 
payment made to his or her estate. Upon accept
ing a back pay award, the deceased member’s



32

heir or heirs shall be required to execute a gen- 
erah release as is provided in subsection (f) 
hereinabove.

i. In the event that a member of Group “A” or 
Group “B” refuses his or her award, or cannot 
be located or, if deceased, his heir or heirs can
not be located through the exercise of reasonable 
effort, his or her back pay award shall be 
placed in the Respondent’s special account as 
provided in subsection (b) above, to be returned 
to the Respendent’s general control, if unclaimed 
upon expiration of the account’s life.

C. SETTLEMENT AGREEMENT—GOALS AND 
TIMETABLES

1. a. For Affirmative Action purposes, the Affected
Class is hereby defined as all hourly rated fe
males presently employed in the Respondent’s 
Package and Grease Department whose seniority 
date antecedes April 5, 1974 and all members of 
back pay Group “A” who are presently employed 
in the classification of Operator Helper No. 1, 
Boiler Washer “X”, Brander “X”, Operator 
Helper No. 2, Utility Helper or Laborer.

b. For the sake of convenience, the Affected Class 
for Affirmative Action purposes shall be desig
nated and hereinafter referred to as Group “C”.

2. The Respondent, firm in its commitment to act in 
good faith and compliance with Title VII of the 
Civil Rights Act of 1964, as amended, has con
ducted a thorough analysis of its work force and has,



33

as of January 1, 1976, identified those classifica
tions wherein Negroes, Spanish Surnamed Ameri
cans and/or females are statistically underrepre
sented. Said classifications, designated and herein
after referred to as “Target Classifications,” are as
follows:

a. Analytical Tester
b. Area Storehouseman
c. Boiler Fireman
d. Boilermaker
e. Bricklayer
f. Carpenter

g- Clerical
h. Compounder No. 1
i. Craft Apprentice and Trainee
j- Dockman

k. Electrician
1. Garage Mechanic

m. Gas Dispatcher
n. Greasemaker No. 1
0 . Greasemaker No. 2
P- Instrument Man
q- Insulator
r. Lineman
s. Machinist
t. Operator No. 1

u. Operator No. 2
V. Assistant Operator

w. Painter
X. Pipefitter
y- Power Plant Engineer No. 1
z. Power Plant Engineer No. 2



34

aa. Power Plant Operator 
bb. Pumper No. 1 
cc. Pumper No. 2 
dd. Railroad Craft Group 
ee. Receiving Room Man 
ff. Treater No. 1 
gg. Treater No. 2 
hh. Tinner

ii. Treater Helper No. 1 
jj. Troubleman 

kk. Water Pumper No. 2 
11. Water Tender 

mm. Water Treater No. 1 
nn. Water Treating Plant Operator 
oo. Welder
pp. EEO-l Technician Category 
qq. EEO-1 Professional Category 
rr. EEO-1 Official and Manager Category

3. With respect to the Respondent implementing its 
Affirmative Action Program as provided herein, the 
Commission stipulates that:

a. Ratios shall not be fixed but shall serve solely as 
general measures of the Respondent’s satisfactory 
progress hereunder.

b. Although it is assumed and expected that minority 
and female placement within the above listed 
“Target Classifications” will be evenly distrib
uted, the Respondent will not be faulted if it fails 
to meet its goals and timetables in one or more 
classifications as long as its overall progress is 
satisfactory.



35

c. The Respondent shall not be restricted to selection 
of Group “C” Affected Class members in meet
ing its goals and timetables, but may, at its dis
cretion, select other qualified Negro, Spanish Sur- 
named American or female employees, or recruit 
from outside its workforce, thereby equally satis
fying Affirmative Action commitments.

d. Failure by the Respondent to meet its goals and 
timetables hereunder shall not serve as justifica
tion to increase or renegotiate backpay as pro
vided in Section B.

4. Considering the above, the Respondent agrees to 
establish a goal to fill one of every five vacancies in 
“Target Classifications” other than its EEO-1 Offi
cial and Manager Category, wherein the ratio shall 
be one of every seven, with a Negro, a Spanish Sur- 
named American or a female until such time as 
their respective representation jointly within said 
classifications equals or exceeds their joint repre
sentation throughout the Respondent’s workforce.

5. On occasions when a vacancy is to be filled with a 
Group “C” member, the Respondent will fill it by 
selecting the bidder having greatest seniority, sub
ject to relative skills, abilities, and qualifications, 
and provided that the Respondent’s initial entry 
requirements are met.

6. Group “C” members upgrading hereunder shall be 
classified as provisional and shall be on trial for a 
period not to exceed 120 days. They will receive 
the same training and orientation given other em
ployees, and, if qualifying according to normal



36

company competency standards, the provisional 
title shall be dropped. The Respondent may make 
its determination prior to expiration of the full 120 
day period. An employee determined by the Re
spondent not to be qualified for the job for which 
he or she has been on trial shall be returned to his 
or her former classification without loss of seniority. 
Determination that any employee has qualified here
under shall not bind the Respondent to accept the 
employee for any other classification, but such em
ployee shall be judged at each level in the same 
manner as other employees. An upgraded Group 
“C” member may disqualify himself or herself dur
ing the 120 day trial period and, in that event, shall 
be returned to his or her former classification with 
uninterrupted seniority.

7. Each upgraded Group “C” member shall have his 
or her seniority date determined by applicable col
lective bargaining agreement provisions, with the 
exception that in the event of a reduction in force 
or layoff, any Group “C” member who has up
graded to a Clerical classification or to a Classifi
cation represented by the United Transportation 
Union; the Bricklayers, Masons and Plasters Inter
national Union Local No. 13; the International 
Association of Machinists and Aerospace Workers, 
Port Arthur Lodge No. 823; or the International 
Brother of Electrical Workers, AFL-CIO, Local 
Union No. 390 shall have humpback rights into the 
Operator Helper No. 2 pool or into the classifica
tion of Utility Helper or Laborer, according to his 
or her former seniority at the time upgraded. The



37

Respondent shall retain the right to select into 
which of the above three classifications the affected 
Group “C” member shall be placed. Each Group 
“C” member so displaced shall continue to hold 
rights to recall into his or her craft position from 
which displaced, as though he or she had not 
bumped back.

8. The Respondent agrees that the rate of pay for each 
upgraded Group “C” member shall be the higher 
of his or her permanent rate at the time upgraded 
or the appropriate new rate. This provision shall 
not apply in the event that a Group “C” member 
bids into a classification in which the top rate for 
the new line of progression is less than his or her 
former rate.

9. Each member of Group “C” who participates in this 
special program shall receive one bona fide oppor
tunity to upgrade. Such opportunity shall be satis
fied, and the employee’s rights hereunder shall ter
minate, when the employee either (a) takes a job 
and qualifies therefor, (b) takes a job and fails to 
qualify or requests to return to his or her former 
job classification or (c) declines an offer to up
grade. Group “C” members who resign from em
ployment with the Respondent shall have no further 
rights hereunder.

10. An upgraded employee’s failure to qualify during 
the established trial period, or a declination of a 
job offer made to an employee by the Respondent, 
shall not satisfy that particular exercise of the Re
spondent’s obligation under established ratios to



38

ward goals and timetables, and such opportunity 
shall be extended to another individual.

11. Notwithstanding any of the foregoing, the Respond
ent shall not be required to place or retain any 
person in a job who does not have the skill, ability 
and qualifications to perform said job.

12. The United States Equal Employment Opportunity. 
Commission and the Respondent remain in dis
agreement as to the Respondent’s continued use of 
test battery results for employment and promotion 
purposes. However, in order to provide a means 
to resolve those matters held in dispute, the Com
mission agrees that the Respondent reserves the 
right to utilize test scores along with other job 
related criteria in assessing individual qualifications. 
In consideration therefore, the Respondent repre
sents that it shall not rely upon test scores as 
justification for its failure to meet goals and time
tables in any job classification.

D. AFFIRMATIVE ACTION

The Respondent agrees to refine and strengthen on a 
continuing basis positive and objective nondiscriminatory 
employment standards, procedures and practices and re
presents that in its business operations it exerts continuing 
effort to uniformly apply such standards, practices, and 
procedures in a manner which will assure equal employ
ment opportunities in all aspects of its total work force 
and operations without regard to race, color, religion, sex 
or national origin.



39

E. COMMISSION ASSERTION AND REPORTING 
REQUIREMENTS

1. The Equal Employment Opportunity Commission 
agrees that upon fulfillment of its obligations here
under the Respondent will be in full compliance 
with all provisions of Title VII of the Civil Rights 
Act of 1964, as amended, at its Port Arthur, Texas 
Refinery.

2. Six months after the date of approval of this Agree
ment and every six months thereafter for its estab
lished life of five years, the Respondent shall send 
to the Commission a written report concerning all 
actions encompassed by the provisions hereinabove 
set forth, Such reports shall accurately, fully and 
clearly describe the nature of the remedial and affir
mative action undertaken and shall be submitted to 
the District Director, Equal Employment Oppor
tunity Commission, 2320 LaBranch, Room 1101, 
Houston, Texas 77004 with a copy submitted to the 
Regional Manager, Office for Equal Opportunity, 
Department of the Interior, Denver Federal Center, 
Building 67, Room 880, Denver, Colorado 80225.

F. SIGNATURES
I have read the foregoing Conciliation Agreement and 

I accept and agree to the provisions contained herein:

4/14/76 MERLIN BREAUX
Gulf Oil Company—U.S.
Port Arthur, Texas 
Respondent



40

\  I recommend approval of. this Conciliation Agreement:

4/14/7 6 JAMES R. ANDERSON
James R. Anderson
Equal Opportunity Specialist (E)

I concur in the above recommendation for approval of 
this Conciliation Agreement:

4/14/76 CARL D. HANLEY
Supervisory Equal Opportunity 
Specialist (E)

Approved on behalf of the Commission:

4/14/76 HERBERT C. McCLEES
Herbert C. McClees 
District Director

G. CERTIFICATE OF REVIEW AND APPROVAL

1. This is to certify on behalf of the Office of Equal 
Opportunity, United States Department of the In
terior, review and approval of the foregoing con
ciliation agreement by and between the U. S. Equal 
Employment Opportunity Commission and Gulf 
Oil Company—U.S., Port Arthur, Texas.

2. It is agreed that the Respondent has complied with 
all of the provisions of the letter agreement between 
Edward E. Shelton, Director of Office for Equal 
Opportunity, United States Department of the In
terior and L. R. Johnston, Vice President, Em
ployee Relations, Gulf Oil Company—U.S. dated



41

May 7, 1971 and all points have been resolved to 
the complete satisfaction of the Office for Equal 
Opportunity, United States Department of the In
terior with the single exception of a portion of para
graph 2e. “Free Bidding—Non-Related Jobs” in 
said agreement.
With regard to such paragraph, vacancies in the 
following jobs will be posted for bid to present em
ployees in Group “B”:
Checker Wax Packaging House—

Bathhouse Attendant Maintenance Division
3. Should a bidding employee in Group “B” be senior 

to the employee who would receive the job through 
normal promotional procedures, such employee 
should be awarded the job. In addition, should her 
present rate be greater than the posted job in ques
tion, she should retain her present rate and also 
should have the option of returning to her former 
position within a thirty-day period. Other members 
of the “affected class” shall not have such bidding 
rights.

4. The Office for Equal Opportunity, Department of 
the Interior agrees that upon fulfillment of its 
obligations hereunder the Respondent will be in 
full compliance with all provisions of Executive 
Order 11246, as amended, at its Port Arthur, Texas 
Refinery.

Fire Assistant 
Truck Driver

Checker

Pump House 78 
(Lubricating)

Drum Filling and Loading 
(Package and Grease) 

Maintenance Division 
Maintenance Division



42

5. The Respondent recognizes that it has a continuing 
obligation for Affirmative Action under Executive 
Order 11246, as amended, and the implementing 
regulations of the Department of Labor.

4/14/76 GERALD C. WILLIAMS
Gerald C. Williams 
Western Regional Manager

Reviewed:

4/14/76 JAMES R. ANDERSON
James R. Anderson
Equal Opportunity Specialist (E)

Approved on behalf of the United States Equal Employ
ment Opportunity Commission:

4/14/76 LORENZO D. COLE
Lorenzo D. Cole 
Deputy Director

EXHIBIT A— List of Employees (Omitted) 

EXHIBIT B—List of Employees (Omitted)



43

EXHIBIT B 

May 25, 1976

I am required to make the following statement by 
Gulfs Law Department. Since 6 individuals have filed 
a class action suit against Gulf Oil Corporation and the 
Union alleging discrimination exists at this plant and since 
you are a potential plaintiff in that suit, Gulf must sus
pend—pending the court’s order—all further mailing of 
checks and all further contacts with you concerning the 
payment of money under the EEOC agreement. We re
gret this situation deeply; but due to the suit, we cannot 
proceed further until the court so orders.

Wm. G. DUCK 
Wm. G. Duck

WGD/am



44

ORDER

[Caption Omitted in printing]

Filed May 28, 1976

Having considered the Motion by the Defendant, Gulf 
Oil Corporation, to limit communications with any po
tential or actual class member;

IT IS ORDERED that, in this action, all parties hereto 
and their counsel are forbidden directly or indirectly, 
orally or in writing, to communicate concerning such ac
tion with any potential or actual class member not a 
formal party to the action. The communications for
bidden by this order include, but are not limited to. (a) 
solicitation directly or indirectly of legal representation 
of potential and actual class members who are not formal 
parties to the class action; (b) solicitation of fees and 
expenses,and agreements to pay fees and expenses from 
potential and actual class members who are not formal 
parties to the class action; (c) solicitation by formal 
parties to the class action of requests by class members 
to  QPt out in class actions under subparagraph (b )(3 ) 
of Rule 23, F.R.Civ.P.; and (d) communications from " 
counsel or a party which may tend to misrepresent the 
status, purposes and effects of the class action, and of any 
impressions tending, without cause, to reflect adversely on 
any party, any counsel., the Court, or any administration 
of justice/The obligations and prohibitions of this order 
are not exclusive. All other ethical, legal and equitable 
obligations are unaffected by this order.



45

This order shall be effective until Judge Fisher returns 
and can hear the matter upon formal motion.

Counsel for defendant, Gulf Oil Corporation, shall 
present a motion on this matter to Judge Fisher as soon 
as possible upon Judge Fisher’s return.
Date: May 28, 1976

/ s /  WILLIAM M. STEGER 
United States District Judge



46

MOTION TO MODIFY ORDER 

[Caption Omitted in Printing]

Filed June 8, 1976

Comes now Gulf Oil Corporation (Gulf), a Defendant 
in the above-styled case, and it moves this Court for an 
order modifying Judge Steger’s Order dated May 28, 
1976, and filed of record in this case on the same date, 
to allow Gulf to comply with the terms of the Concilia
tion Agreement dated April 14, 1976, and signed by Gulf, 
the Equal Employment Opportunity Commission and the 
Office for Equal Opportunity, U.S. Department of the 
Interior, by resuming under the Court’s supervision the 
payment of back pay awards to employees covered by the 
Conciliation Agreement and obtaining from those em
ployees receipts and releases all as provided for by the 
terms of the Conciliation Agreement. In support of this 
Motion, Gulf has attached a Memorandum of Points and 
Authorities.

[Signatures Omitted in Printing]

[Certificate of Service Omitted]



47

MEMORANDUM IN SUPPORT OF GULF OIL 
CORPORATION’S MOTION TO MODIFY ORDER

[Caption Omitted in Printing]

Filed June 8, 1976

This is a class action suit brought by six individual 
employees of Gulf’s Port Arthur Refinery alleging that 
they have been victims of discrimination in violation of 
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§ 2Q00e, et seq. and of the Civil Rights Act of 1866, 
42 U.S.C. § 1981. The suit was filed on May 18, 1976, 
and Gulf was served with a summons on May 24, 1976.

Four days after the suit was filed and prior to the time 
Gulf was served with the summons in this case, attorneys 
for the Plaintiffs appeared at a meeting of approximately 
75 actual or potential class members in Port Arthur and 
discussed with them the issues involved in the case and 
recommended to those employees that they support the 
present suit. In addition, it was reported to Gulf that 
Mr. Ulysses Gene Thibodeaux, an attorney for the Plain- 
tiffsTrecommm^ employees that they do^nof
sign thereceipt lm d " re le a i^  mailed to

"the emp[oye^~~as~~a~resiJt ^ ^  Conciliation Agreement 
entered into by Gulf, the U.S. Equal Employment Op
portunity Commission (EEOC jU m ffThU U f^ 
'Opportunity. U.S. Department,.of the Intenor~(OEO)7 
In fact, it is reported that Mr. Thibodeaux stated that even 
n TEiempIovee had signed the receipt and release, he 
jshould now return the check which had been mailed''To" 
the employee bv Gulf. I



48

As a result of this activity by the Plaintiffs’ attorney, 
Gulf on May 28, 1976, filed a Motion to Limit Com
munications with any Potential or Actual Class Member 
and brought the Motion on for hearing before The Hon
orable William M. Steger. Judge Steger agreed to hear 
the matter in the absence of The Honorable Joe J. Fisher 
so that the status quo of the case could be preserved until 
Judge Fisher returned. After hearing argument of counsel 
for both the Plaintiffs and Defendant Gulf, Judge Steger 
entered an order which was made applicable to all parties 
and forbid all parties and their attorneys from communi
cating with actual or potential class members who were 
not formal parties to the action. In addition, Judge Steger 
ordered that the Defendant Gulf present a motion on this 
matter to Judge Fisher as soon as possible upon Judge 
Fisher’s return. In order to comply with Judge Steger’s 
order, Gulf has filed this Motion to Modify so that the 
matter may be heard by Judge Fisher.

The purpose of the Motion to Modify is to allow Gulf, 
the EEOC, and the OEO to proceed under the terms of 
a Conciliation Agreement dated April 14, 1976 (attached 
hereto as Exhibit A ). The Conciliation Agreement which 
has been negotiated between Gulf and the Federal agencies 
over a period of eight years was an effort by Gulf to 
settle the very issues which now have been raised in this 
eleventh hour lawsuit. The Conciliation Agreement pro
vided for an award of over $900,000 to 616 Negro em
ployees and approximately 29 female employees at Gulf’s 
Port Arthur Refinery.

As soon as the Conciliation Agreement was finalized, 
Gulf pursuant to the terms of the Agreement mailed a 
letter and release, the form of which was approved by



49

the Federal agencies, notifying all employees covered by 
the Agreement that they were entitled to an award of 
back pay and that upon execution of the receipt and 
release the employees would receive the back pay award. 
Between the time the Conciliation Agreement was exe
cuted by Gulf and the date the summons was served upon 
Gulf in this action, approximately 452 employees out of 
a total of 643 employees entitled to a back pay award 
under the Agreement had executed the receipt and re
lease and had received their back pay checks.

So as to comply with the letter and spirit of Rule 23(a), 
F.R.C.P. and the Canons of Ethics of the Bar Association, 
Gulf immediately upon service of the summons suspended 
all further mailings to actual or potential class members 
and informed all actual or potential class members who 
called Gulf that no further communications concerning 
the Conciliation Agreement or the issues raised in the 
lawsuit could be discussed with them until the Court 
so orders. Attached hereto as Exhibit B is a copy of a 
statement which was read to all potential and actual 
class members who called Gulf inquiring about these 
matters. In accordance with Judge Steger’s Order, Gulf 
has continued to suspend the payment of back pay awards 
and the acceptance of receipts and releases from em
ployees who are actual or potential class members.

So that Gulf may fulfill the terms of the Conciliation 
Agreement, it has moved this Court for an order to 
modify Judge Steger’s previous Order so that it may 
proceed to make the back pay awards pursuant to the 
terms of the Conciliation Agreement. It is felt that the 
rights of all parties will be fully protected if the Court 
exercises its judicial control over the procedures whereby



50

potential or actual class members not formal parties to 
this suit are contacted with regard to the terms of the 
Conciliation Agreement. In that regard, Gulf proposes 
that the Court order that the Clerk mail a letter to all 
employees of Gulf at its Port Arthur Refinery who are 
covered by the Conciliation Agreement and who have not 
signed receipts and releases for back awards informing 
them that they have 45 days from the date of receipt of 
the letter to accept the offer of settlement as contained 
in the Conciliation Agreement and if such offer is not 
accepted within that time period, the offer will expire 
until further notice of the Court. Since the affected em
ployees already have received notices informing them of 
the terms of the Conciliation Agreement and enclosing 
the receipt and release the Court’s order setting a time 
limit for acceptance of the offer would now be appropriate. 
During the 45 day time period in which the actual or 
potential class members are deciding whether or not to 
accept the offer under the Conciliation Agreement the 
parties to this lawsuit and their counsel should be for
bidden to contact those individuals so that they might 
make their own independent decision concerning the 
acceptance of the back pay award.

The two Federal agencies who have been involved with 
this matter for over eight years and who have protected 
the rights of the individual employees support Gulf’s 
position that the terms of the Conciliation Agreement 
should be carried out by allowing Gulf to proceed with 
the payment of back pay awards. Mr. Herbert C. Mc- 
Clees, who is the District Director of the EEOC in Hous
ton and whose office was involved with the negotiation 
of the Conciliation Agreement, states in his affidavit that



51

he believes the issues and relief sought by the Plaintiffs 
in this case are almost identical to the issues which were 
resolved under the terms of the Conciliation Agreement. 
In addition, he states that he feels that the Conciliation 
Agreement is a “fair, equitable, thorough and compre
hensive solution to the charges that Gulf has discrimin
ated at its Port Arthur Refinery in violation of Title VII 
of the Civil Rights Act of 1964” (see page 4 of Affidavit 
of Herbert C. McClees attached hereto as Exhibit C). 
Mr. Gerald C. Williams, Western Regional Manager of 
the OEO in Lakewood, Colorado, whose office was 
responsible for negotiating the Conciliation Agreement 
on behalf of the Department of the Interior, supports 
Mr. McClees’ belief that Gulf should be allowed to con
tinue to fulfill the terms of the Conciliation Agreement. 
(See Affidavit of Mr. Williams attached hereto as Ex
hibit D.)

Gulf’s request to modify Judge Steger’s Order to allow 
the payment of back pay awards under the Conciliation 
Agreement is consistent with the provisions of Rule 23(e) 
which states: “A class action shall not be dismissed or 
compromised without the approval of the Court, and notice 
of the proposed dismissal or compromise shall be given 
to all members of the class in such manner as the Court 
directs.” The Courts have been consistent in their ruling 
that a defendant in a class action suit may negotiate 
settlements with potential or actual class members who 
are not formal parties to the action. Weight Watchers of 
Philadelphia, Inc. v. Weight Watchers International, Inc., 
455 F.2d 770 (2nd Cir. 1972). However, the courts 
have been anxious to protect the rights of unsophisticated 
potential class members by exercising judicial control 
over the manner in which settlement proposals are com



52

municated to those class members. In A m erica n  F inance  
System , Inc., v. H arlow , 65 F.R.D. 572 (D. Md. 1974) 
the court did allow precertification communications be
tween the named parties and the prospective class mem
bers only within the strict limits delineated by a memor
andum and order from the court. In that case, the court 
allowed the defendants to send a notice of proposed set
tlement to all potential class members and allowed the 
potential class members 35 days from the date of receipt 
of the order to accept or reject the proposed offer. How
ever, all further communications other than those per
mitted by the notice between the named parties, their 
representatives or counsel and the potential class members 
were forbidden by the court. H arlow , supra, at 577. The 
plaintiffs in the H arlow  case stated that such a limitation 
on communications was in violation of the First Amend
ment to the United States Constitution and would violate 
Rule 23(e) since a settlement by potential class members 
would have the effect of destroying the numerosity re
quirement under Rule 23(a). However, the court dis
missed these arguments by saying:

“Counterbalancing these considerations is the 
danger that the class action vehicle will be eviscer
ated by violators of the civil rights acts who are 
able to convince legally unsophisticated class mem
bers that their claims are unlikely to succeed. Even 
in W eight W atchers, a class not involving a civil 
rights act, the lower court required that counsel for 
each franchisee be present during the discussion and 
that counsel for the class representative be given five 
days notice of such negotiations, 55 F.R.D. 50 
(1971). Given this judicial concern in the guidelines 
of the M anual For C om plex  and  M u ltid istr ic t L iti
gation, the court will only permit AFS to send a



53

neutrally worded notice of settlement containing no 
more than the terms of the proposed compromise, 
the position of both parties and a copy of this 
memorandum and order. If the potential class mem
ber affirmatively rejects the offer or fails to answer 
within 30 days, the court will assume that he wishes 
the action to proceed to judgment.” Harlow, supra. 
at 576.

The instant case provides the maximum protection for 
unsophisticated class members since the two Federal 
agencies have been involved in detailed negotiations for 
a period of eight years in their attempts to settle the 
charges that Gulf has discriminated in violation of Title 
VII at its Port Arthur Refinery. Since the potential class 
members’ rights have been protected by the Federal 
agencies, it is felt that the Court should allow Gulf to 
proceed with the payment of back pay awards to the 
potential class members.

Conclusion

In view of the above stated authorities, Gulf’s Motion 
to Modify should be granted.

[Signatures Omitted in Printing]



54

CONCILIATION AGREEMENT 

Exhibit A

[Caption Omitted in Printing]

*  *  *

A  charge having been filed under Title VII of the Civil 
Rights Act of 1964, as amended, by a Commissioner of 
the U. S, Equal Employment Opportunity Commission 
against the Respondent, the charge having been investi
gated and reasonable cause having been found, the parties 
do resolve and conciliate this matter as follows:

[Table of Contents Omitted in Printing]

A. GENERAL PROVISIONS

1. It is understood that this Agreement does not con
stitute an admission by the Respondent of any vio
lation of Title VII of the Civil Rights Act of 1964, 
as amended.

2. The U. S. Equal Employment Opportunity Com
mission hereby waives and releases its cause of 
action against the Respondent under the instant 
charge and covenants not to sue the Respondent 
independently or on behalf of any individual in
cluding, but not necessarily limited to, persons 
listed on Attachments “A” and “B” hereto with 
respect to any matter alleged thereunder, subject 
to performance by the Respondent of the promises 
and representations contained herein.



55

3. The Respondent understands that the Commission, 
on its own motion, may review compliance with 
this Agreement. As a part of such review, the 
Commission may require written reports concern
ing compliance, may inspect the premises, examine 
witnesses, and examine and copy documents perti
nent to such review. The Commission agrees that 
the Respondent reserves all rights and protection 
afforded by the Freedom of Information Act, as 
amended.

4. The Respondent reaffirms that all of its hiring, 
promotion practices, classification, assignments, 
layoffs and all other terms and conditions of em
ployment shall be maintained and conducted in a 
manner which does not discriminate on the basis 
of race, color, religion, sex or national origin in 
violation of Title VII of the Civil Rights Act of 
1964, as amended.

5. The Respondent agrees that it will not knowingly 
practice nor permit its supervisory or other per
sonnel to practice discrimination or retaliation of 
any kind against any person because of his or her 
opposition to any practice declared unlawful under 
Title VII of the Civil Rights Act of 1964, as 
amended, or because of the filing of a charge, or 
giving of testimony or assistance, or participation 
in any manner in any investigation, proceeding, 
or hearing under Title VII of the Civil Rights Act 
of 1964, as amended.

6. Recognizing the exception with respect to sex as 
regards toilets, showers and the like, the Respond
ent reaffirms that all facilities on the premises or 
furnished its employees, including recreational op-



56

portunitics and all other conveniences and services, 
are available for the use and enjoyment of any 
employee without regard to race, color, religion, 
sex or national origin; that there is no discrimina
tion against any employee on said grounds with 
respect to the use of facilities; and that the notices 
required to be posted by Title VII of the Civil 
Rights Act of 1964, as amended, are posted.

B. SETTLEMENT AGREMENT—BACK PAY
1. Appertaining to back pay, the Affected Class is 

hereby defined as all Negroes employed by the 
Respondent on July 2, 1965, whose seniority date 
antecedes January 1, 1957, and all hourly rated 
females employed by the Respondent in its Package 
and Grease Department on July 2, 1965.

2. The Commission agrees that a thorough search has 
been made to identify all individuals potentially 
entitled to backpay under this Agreement, that the 
Respondent’s personnel records since the effective 
date of Title VII of the Civil Rights Act of 1964 
have been exhaustively analyzed and that, through 
examination of documents submitted by the Re
spondent, no persons potentially entitled other than 
those listed on Attachments “A” and “B” hereto 
could be found.

3. For the sake of convenience, the Affected Classes, 
as shown on Attachments “A” and “B”, shall be 
designated and hereinafter referred to as Group 
“A” and Group “B” respectively.

4. The Respondent agrees that all individuals iden
tified as belonging to Group “A” or Group “B”



57

shall immediately be awarded upon notification of 
acceptance as described below, such back pay as 
is hereinafter provided:
a. The Respondent represents that it has set aside 

a sum for purposes of fulfilling all back pay 
obligations which are or might have been in
curred as a result of employment practices com
plained of in the instant charge or which were 
treated in the Commission’s Letters of Deter
mination or Reconsideration of Determination 
thereon, including matters found by the Com
mission to be like and related.

b. The United States Equal Employment Oppor
tunity Commission concurs that the sum set 
aside is sufficient to meet the purposes of pro
viding equitable relief to designated members of 
Group “A” or Group “B” and stipulates that 
$35,000.00 of said amount may be reserved and 
held in a special account by the Respondent 
for a period of five years. The Commission 
agrees that, insofar as matters encompassed by 
this Agreement are raised to issue in the future, 
the Respondent shall utilize its special account 
to dispose of contingent liabilities, and that any 
undispensed funds remaining, after passage of 
the account’s established five year life, shall be 
returned to the Respondent’s general control for 
unrestricted use.

c. In formulating the specific relief due each in
dividual hereunder credits will be awarded as 
follows:
(1) To members of Group “A”, $5.62 for each 

month of continuous service with the Re



58

spondent prior to January 1, 1957, and 
$2,81 for each month of continuous service 
thereafter until date of termination or until 
January 1, 1971, whichever occurs earlier,

(2) To members of Group “B”, $5.62 for each 
month of continuous service with the Re
spondent until date of termination or until 
January 1, 1975, whichever occurs earlier.

d. Back pay awards previously tendered to members 
of Group “A” under the Respondent’s Agree
ment dated May 7, 1971, with the Office for 
Equal Opportunity, United States Department of 
the Interior shall be deducted from amounts 
hereunder due those same individuals.

e. Back pay awards will be subject to standard 
deductions for F.I.C.A. and Federal Income Tax 
Withholding.

f. Upon accepting a back pay award, each Group 
“A” or Group “B” member will be required to 
execute a general release to the Respondent for 
any and all claims against the Respondent as a 
result of events arising from its employment 
practices occurring on or before the date of re
lease, or which might arise as the result of the 
future effects of past or present employment 
practices.

g. Prior to tendering back pay awards, the Re
spondent agrees to notify in writing each member 
belonging to Group “A” or Group “B” that he 
or she has been so identified, and of the general 
formula used to calculate awards and of the 
conditions of waiver or release required in ac



59

cepting back pay. Each member shall be fur
nished a form on which to notify the Respondent, 
within thirty days, whether such member desires 
to accept or decline back pay consideration. A 
failure on the part of any member to respond 
within thirty days shall be interpreted as ac
ceptance of back pay. It is agreed that the form 
of notification to be utilized shall be reviewed 
and signed by a Commission representative prior 
to being implemented or disseminated.

h. In the event that a member of Group “A” or 
Group “B” is deceased, notice shall be given and 
payment made to his or her estate. Upon ac
cepting a back pay award, the deceased mem
ber’s heir or heirs shall be required to execute 
a general release as is provided in subsection (f) 
hereinabove.

i. In the event that a member of Group “A” or 
Group “B” refuses his or her award, or cannot 
be located or, if deceased, his heir or heirs can
not be located through the exercise of reasonable 
effort, his or her back pay award shall be placed 
in the Respondent’s special account, as provided 
in subsection (b) above, to be returned to the 
Respondent’s general control, if unclaimed upon 
expiration of the account’s life.

C. SETTLEMENT AGREEMENT—GOALS AND 
TIMETABLES

1. a. For Affirmative Action purposes, the Affected 
Class is hereby defined as all hourly rated fe
males presently employed in the Respondent’s



60

Package and Grease Department whose seniority 
date antecedes April 5, 1974 and all members of 
back pay Group “A” who are presently employed 
in the classification of Operator Helper No, 1; 
Boiler Washer “X”, Brander “X”, Operator 
Helper No. 2, Utility Helper or Laborer.

b. For the sake of convenience, the Affected Class 
for Affirmative Action purposes shall be desig
nated and hereinafter referred to as Group “C”.

2. The Respondent, firm in its commitment to act in 
good faith and compliance with Title VII of the 
Civil Rights Act of 1964, as amended, has con
ducted a thorough analysis of its work force and 
has, as of January 1, 1976, identified those classi
fications wherein Negroes, Spanish Surnamea 
Americans and/or females are statistically under
represented. Said classifications, designated and 
hereinafter referred to as “Target Classifications,” 
are as follows:

a. Analytical Tester
b. Area Storehouseman
c. Boiler Fireman
d. Boilermaker
e. Bricklayer
f. Carpenter

g. Clerical
h. Compounder No. 1
i. Craft Appentice and Trainee
j. Dockman
k. Electrician
l. Garage Mechanic

m. Gas Dispatcher
n. Greasemaker No. 1



61

o. Greasemaker No. 2
p. Instrument Man
q. Insulator
r. Lineman
s. Machinist
t. Operator No. 1
u. Operator No. 2
v. Assistant Operator

w. Painter
x. Pipefitter
y. Power Plant Engineer No. 1
z. Power Plant Engineer No. 2

aa. Power Plant Operator 
bb. Pumper No. 1 
cc. Pumper No. 2 
dd. Railroad Craft Group 
ee. Receiving Room Man 
ff. Treater No. 1 

gg. Treater No. 2 
hh. Tinner

ii. Treater Helper No. 1 
jj. Troubleman 

kk. Water Pumper No. 2
11. Water Tender 

mm. Water Treater No. 1 
nn. Water Treating Plant Operator
oo. Welder
pp. EEO-1 Technician Category
qq. EEO-1 Professional Category
rr. EEO-1 Official and Manager Category

3. With respect to the Respondent implementing its 
Affirmative Action Program as provided herein, the 
Commission stipulates that:



62

a. Ratios shall not be fixed but shall serve solely 
as general measures of the Respondent’s satis
factory progress hereunder.

b. Although it is assumed and expected that minor
ity and female placement within the above listed 
“Target Classifications” will be evenly distributed 
the Respondent will not be faulted if it fails to 
meet its goals and timetables in one or more 
classifications as long as its overall progress is 
satisfactory.

c. The Respondent shall not restricted to selection 
of Group “C” Affected Class members in meet
ing its goals and timetables, but may, at its dis
cretion, select other qualified Negro, Spanish 
Surnamed American or female employees, or re
cruit from outside its workforce, thereby equally 
satisfying Affirmative Action commitments.

d. Failure by the Respondent to meet its goals and 
timetables hereunder shall not serve as justifica
tion to increase or renegotiate backpay as pro
vided in Section B.

4. Considering the above, the Respondent agrees to 
establish a goal to fill one of every five vacancies in 
“Target Classifications” other than its EEO-1 Offi
cial and Manager Category, wherein the ratio shall 
be one of every seven, with a Negro, a Spanish Sur
named American or a female until such time as 
their respective representation jointly within said 
classifications equals or exceeds their joint repre
sentation throughout the Respondent’s workforce.

5. On occasions when a vacancy is to be filled with a 
Group “C” member, the Respondent will fill it by



63

selecting the bidder having greatest seniority, sub
ject to relative skills, abilities, and qualifications, 
and provided that the Respondent’s initial entry 
requirements are met.

6. Group “C” members upgrading hereunder shall be 
classified as provisional and shall be on trial for a 
period not to exceed 120 days. They will receive 
the same training and orientation given other em
ployees, and, if qualifying according to normal 
company competency standards, the provisional title 
shall be dropped. The Respondent may make its 
determination prior to expiration of the full 120 
day period. An employee determined by the Re
spondent not to be qualified for the job for which 
he or she has been on trial shall be returned to his or 
her former classification without loss of seniority. 
Determination that any employee has qualified here
under shall not bind the Respondent to accept the 
employee for any other classification, but such em
ployee shall be judged at each level in the same 
manner as other employees. An upgraded Group 
“C” member may disqualify himself or herself dur
ing the 120 day trial period and, in that event, shall 
be returned to his or her former classification with 
uninterrupted seniority.

7. Each upgraded Group “C” member shall have his 
or her seniority date determined by applicable 
collective bargaining agreement provisions, with the 
exception that in the event of a reduction in force 
or layoff, any Group “C” member who has up
graded to a Clerical classification or to a classifica
tion represented by the United Transportation 
Union; the Bricklayer, Mason and Plasters Inter-



64

national Union Local No. 13; the International 
Association of Machinists and Aerospace Workers, 
Port Arthur Lodge No. 823; or the International 
Brother of Electrical Workers, AFL-CIO, Local 
Union No. 390 shall have humpback rights into the 
Operator Helper No. 2 pool or into the classifica
tion of Utility Helper or Laborer, according to his 
or her former seniority at the time upgraded. The 
Respondent shall retain the right to select into 
which of the above three classifications the affected 
Group “C” member shall be placed. Each Group 
“€ ” member so displaced shall continue to hold 
rights to recall into his or her craft position from 
which displaced, as though he or she had not bump
ed back.

8. The Respondent agrees that the rate of pay for each 
upgraded Group “C” member shall be the higher 
of his or her permanent rate at the time upgraded 
or the appropriate new rate. This provision shall not 
apply in the event that a Group “C” member bids 
into a classification in which the top rate for the 
new line of progression is less than his or her 
former rate.

9. Each member of Group “C” who participates in this 
special program shall receive one bona fide oppor
tunity to upgrade. Such opportunity shall be satis
fied, and the employee’s rights hereunder shall ter
minate, when the employee either (a) takes a job 
and qualifies therefor, (b) takes a job and fails to 
qualify or requests to return to his or her former 
job classification or (c) declines an offer to up
grade. Group “C” members who resign from em



65

ployment with the Respondent shall have no further 
rights hereunder.

10. An upgraded employee’s failure to qualify during 
the established trial period, or a declination of a job 
offer made to an employee by the Respondent, shall 
not satisfy that particular exercise of the Respond
ent’s obligation under established ratios toward 
goals and timetables, and such opportunity shall be 
extended to another individual.

11. Notwithstanding any of the foregoing, the Respond
ent shall not be required to place or retain any 
person in a job who does not have the skill, ability 
and qualifications to perform said job.

12. The United States Equal Employment Opportunity 
Commission and the Respondent remain in dis
agreement as to the Respondent’s continued use of 
test battery results for employment and promotion 
purposes. However, in order to provide a means to 
resolve those matters held in dispute, the Commis
sion agrees that the Respondent reserves the right 
to utilize test scores along with other job related 
criteria in assessing individual qualifications. In 
consideration therefore, the Respondent represents 
that it shall not rely upon test scores as justifica
tion for its failure to meet goals and timetables in 
any job classification.

D. AFFIRMATIVE ACTION
The Respondent agrees to refine and strengthen on a 

continuing basis positive and objective nondiscriminatory 
employment standards, procedures and practices and re
presents that in its business operations it exerts continu



66
ing effort to uniformly apply such standards, practices, 
and procedures in a manner which will assure equal em
ployment opportunities in all aspects of its total work 
force and operations without regard to race, color, re
ligion, sex or national origin.

E. COMMISSION ASSERTION AND REPORTING 
REQUIREMENTS

1. The Equal Employment Opportunity Commission 
agrees that upon fulfillment of its obligations here
under the Respondent will be in full compliance 
with all provisions of Title VII of the Civil Rights 
Act of 1964, as amended, at its Port Arthur, Texas 
Refinery.

2. Six months after the date of approval of this Agree
ment and every six months thereafter for its estab
lished life of five years, the Respondent shall send to 
the Commission a written report concerning all 
actions encompassed by the provisions hereinabove 
set forth.

Such reports shall accurately, fully and clearly 
describe the nature of the remedial and affirmative 
action undertaken and shall be submitted to the 
District Director, Equal Employment Opportunity 
Commission, 2320 LaBranch, Room 1101, Hous
ton, Texas 77004 with a copy submitted to the 
Regional Manager, Office for Equal Opportunity, 
Department of the Interior, Denver Federal Center, 
Building 67, Room 880, Denver, Colorado 80225.

F. SIGNATURES

I have read the foregoing Conciliation Agreement and 
I accept and agree to the provisions contained herein:



67

4/14/76 MERLIN BREAUX
Gulf Oil Company—U. S.
Port Arthur, Texas 
Respondent

I recommend approval of this Conciliation Agreement:

4 /14/76 JAMES R. ANDERSON
James R. Anderson
Equal Opportunity Specialist (E)

I concur in the above recommendation for approval of 
this Conciliation Agreement:

4/14/76 CARL D. HANLEY
Supervisory Equal Opportunity 
Specialist (E)

Approved on behalf of the Commission:

4/14/76 HERBERT C. McCLEES
Herbert C. McClees 
District Director

G. CERTIFICATE OF REVIEW AND APPROVAL

1. This is to certify on behalf of the Office of Equal 
Opportunity, United States Department of the In
terior, review and approval of the foregoing con
ciliation agreement by and between the U.S. Equal 
Employment Opportunity Commission and Gulf Oil 
Company—U. S., Port Arthur, Texas.

2. It is agreed that the Respondent has complied with 
all of the provisions of the letter agreement between 
Edward E. Shelton, Director of Office for Equal



68

Opportunity, United States Department of the In
terior and L. R. Johnston, Vice President, Em
ployee Relations, Gulf Oil Company—U. S. dated 
May 7, 1971 and all points have been resolved to 
the complete satisfaction of the Office for Equal 
Opportunity, United States Department of the In
terior with the single exception of a portion of para
graph 2 e. “Free Bidding—Non-Kelated Jobs” in 
said agreement.

With regard to such paragraph, vacancies in the 
following jobs will be posted for bid to present 
employees in Group “B”:

Checker

Checker

Fire Assistant 
Truck Driver 
Bathhouse Attendant

Wax Packing House— 
Pump House 78 
(Lubricating)

Drum Filling and Loading 
(Package and Grease) 

Maintainance Division 
Maintainance Division 
Maintainance Division

3. Should a bidding employee in Group “B” be senior 
to the employee who would receive the job through 
normal promotional procedures, such employee 
should be awarded the job. In addition, should her 
present rate be greater than the posted job in ques
tion, she should retain her present rate and also 
should have the option of returning to her former 
position within a thirty-day period. Other members 
of the “affected class” shall not have such bidding 
rights.



69

4. The Office for Equal Opportunity, Department of 
the Interior agrees that upon fulfillment of its obli
gations hereunder the Respondent will be in full 
compliance with all provisions of Executive Order 
11246, as amended, at its Port Arthur, Texas Re
finery.

5. The Respondent recognizes that it has a continuing 
obligation for Affirmative Action under Executive 
Order 11246, as amended, and the implementing 
regulations of the Department of Labor.

4/14/76 G. C. WILLIAMS
Gerald C. Williams 
Western Regional Manager

Reviewed:

4/14/76 JAMES R. ANDERSON
James R. Anderson
Equal Opportunity Specialist (E)

Approved on behalf of the United States Equal Em
ployment Opportunity Commission:

4/14/76 LORENZO D. COLE
Lorenzo D. Cole 
Deputy Director

[Exhibit A—List of Employees (Omitted)] 

[Exhibit B—List of Employees (Omitted)]



70

Exhibit B 

May 25, 1976
I am required to make the following statement by 

Gulf’s Law Department. Since 6 individuals have filed a 
class action suit against Gulf Oil Corporation and the 
Union alleging discrimination exists at this plant and 
since you are a potential plaintiff in that suit, Gulf must 
suspend—pending the court’s order—all further mailing 
of checks and all further contacts with you concerning 
the payment of money under the EEOC agreement. We 
regret this situation deeply; but due to the suit, we can
not proceed further until the court so orders.

Wm. G. DUCK 
Wm. G. Duck

WGD/am



71

Exhibit C

AFFIDAVIT OF HERBERT C. McCLEES

[Caption Omitted in Printing]

STATE OF TEXAS 
COUNTY OF HARRIS

Herbert C. McClees, being duly sworn, deposes and 
says:

1. I am an employee of the United States Equal Em
ployment Opportunity Commission (hereinafter referred 
to as “the EEOC”) and am located in Houston, Texas 
where the Commission maintains its Houston District 
Office. I have worked for the Commission for eight years 
and presently hold the position of District Director.

2. In my position as District Director, I am charged 
with directing all activities of the Commission for the 
twenty-six county area surrounding Houston, Texas, in
cluding the counties of Jefferson and Orange. Within this 
geographic area I have the authority, as vested in me by the 
EEOC, to investigate charges which have been filed 
against individuals under Title VII of the Civil Rights 
Act of 1964, as amended. In addition, I have the au
thority to enter into a Conciliation Agreement settling 
the charges against the individual when the facts and 
circumstances of a particular case so dictates. In most 
cases, after a charge has been filed with the EEOC an 
employee under my direction and supervision investigates 
the charge to determine whether or not reasonable cause 
exists to believe that the act has been violated. If the in



72

vestigator finds reasonable cause to believe the act has 
been violated, the EEOC attempts to settle all differences 
by entering into a Conciliation Agreement which in some 
cases will provide for an award of back pay to the affected 
employees and an affirmative action program to ensure 
continued compliance with Title VII.

3. I have read and am familiar with the Complaint 
which has been filed in the United States District Court 
for the Eastern District of Texas, Beaumont Division, 
styled: Wesley P. Bernard, et al v. Gulf Oil Company, 
et al, Civil Action No. B-76-183-CA (hereinafter referred 
to as “the suit”). The Complaint was brought by six 
employees of Gulf Oil Corporation (hereinafter referred 
to as “Guff”) at its Port Arthur Refinery against Gulf 
and the Oil, Chemical and Atomic Workers International 
Union, Local Union No. 4-23. In their complaint these 
individuals have alleged that Gulf and the Union have 
discriminated against them in violation of Title VII of 
the Civil Rights Act of 1964 and the Civil Rights Act 
of 1866. Of the six employees who filed this action, three 
have filed charges with the EEOC, while three have failed 
to file charges with the EEOC. Of the three employees 
who have filed charges, two have requested right to sue 
letters be issued, which requests are presently being pro
cessed. The issues raised in the Complaint are almost 
identical to those issues which were investigated by the 
EEOC and which were the subject of a Conciliation 
Agreement signed April 14, 1976 by Gulf, the EEOC and 
the Office for Equal Opportunity, U. S. Department of 
Interior (OEO). The Conciliation Agreement specifi
cally provides that the Agreement does not constitute an 
admission by Gulf of any violation of Title VII of the 
Civil Rights Act of 1964, as amended.



73

4. The charges which have been raised in the suit have 
been the subject of an EEOC investigation which has 
been conducted over the past eight years. During this 
time interval, the EEOC, among other things, inter
viewed employees of Gulf at its Port Arthur Refinery; 
examined all relevant documents and business records of 
Gulf; conducted on-site investigations at Gulf’s Port 
Arthur Refinery; and held numerous meetings with Gulf’s 
executives. It is my opinion that this investigation was 
extremely thorough and comprehensive since it covered 
all Negro employees employed by Gulf on July 2, 1965, 
whose seniority date antecedes January 1, 1957 (the de
fined affected class of Negro employees in the Concilia
tion Agreement). In order to identify this “affected class” 
the EEOC conducted a thorough search in order to 
identify all individuals potentially entitled to back pay 
under the Conciliation Agreement. The personnel rec
ords of all affected employees retained by Gulf since the 
effective date of Title VII of the Civil Rights Act of 
1964 were exhaustively analyzed by the EEOC and no 
persons potentially entitled to a back pay award could be 
found other than those listed on Attachments “A” and 
“B” attached to the Conciliation Agreement. In addition 
to the award of back pay, the Conciliation Agreement 
provided for an affirmative action program where specific 
goals and timetables were set mandating that Gulf recruit 
hire, and promote minorities. In order to ensure that 
Gulf complies with the terms of the Conciliation Agree
ment, including awarding back pay to the affected class 
and complying with the affirmative action goals and time
tables, Gulf must report to the EEOC every six months 
for a period of five years its progress in conforming to the 
provisions of the Conciliation Agreement. I have read



74

the prayer for relief in the Plaintiffs’ Complaint and it is 
my opinion that the relief which the EEOC has obtained 
by way of the Conciliation Agreement provides the same 
kind of relief which the Plaintiffs seek in their suit.

6. Under the Conciliation Agreement, Gulf was re
quired to notify in writing each member of the affected 
class that he or she was entitled to an award of back 
pay and of the conditions of waiver or release required 
in accepting such an award. The Agreement provided 
that each member of the affected class shall be furnished a 
form on which to notify Gulf, within 30 days, whether 
such member desires to accept or decline the back pay 
consideration. A failure on the part of any member to 
respond within the 30 days would be interpreted as an ac
ceptance of back pay under terms of the Agreement. The 
EEOC approved the form of letter and release which was 
sent to each member of the affected class. The Concilia
tion Agreement provides that upon fulfillment of the ob
ligation thereunder, Gulf would be in full compliance 
with all provisions of Title YII of the Civil Rights Act 
of 1964, as amended, at its Port Arthur Refinery.

7. Gulf commenced mailings under terms of the Agree
ment approximately three weeks prior to the filing of the 
suit. Up until the time that Gulf was served with a sum
mons in the suit, it had complied faithfully and fully with 
all terms of the Conciliation Agreement and approxi
mately 431 Negro employees out of a total of 616 Negro 
employees entitled to a back pay award had signed 
releases and received their back pay award. However, 
Gulf notified the EEOC on the date it was served with 
a summons in the suit that they could no longer continue 
to fulfill certain provisions of the Conciliation Agreement



75

until the Court allowed further contact with potential 
or actual class members to the suit.

8. So that the employees may receive their back pay 
awards it is my opinion that Gulf should now be allowed 
to proceed with completing the back pay awards and 
receiving releases under the terms of the Conciliation 
Agreement since that Agreement is a fair, equitable, 
thorough and comprehensive solution to the charges that 
Gulf has discriminated at its Port Arthur Refinery in 
violation of Title VII of the Civil Rights Act of 1964.

HERBERT C. McCLEES 
Herbert C. McClees 
District Director 
Houston District Office 
United States Equal Employment 

Opportunity Commission

Subscribed and sworn to before me 
this 3rd day of June, 1976.

BETTY L. DEFFERARI 
Notary Public in and for 
Harris County, Texas
My Commission Expires June 1, 1977



76

Exhibit D

AFFIDAVIT OF GERALD C. WILLIAMS 

[Caption Omitted in Printing]

STATE OF COLORADO )
)ss

COUNTY OF JEFFERSON )

I, Gerald C. Williams, being duly sworn, depose and say
1. I am an employee of the Office for Equal Opportunity, 
U. S. Department of the Interior, hereinafter referred to 
as the OEO, and am located in Lakewood, Colorado, 
where the OEO maintains its Regional offices. I have 
worked for the OEO for five years in the position of 
Western Regional Manager.

2. In my position as Western Regional Manager, I am 
charged with directing all activties of the OEO for all 
assigned industries with facilities located in states west 
of the Mississippi River but including all of the State 
of Louisiana. Within this geographic area I have the 
authority, as vested in me by the OEO, to initiate investi
gations to determine whether or not government con
tractors or subcontractors are in compliance with Execu
tive Order 11246, as amended, and the implementing 
regulations of the Department of Labor, 41 CFR 60. 
In this regard, when there are issues which violate both 
the Executive Order and Title VII of the Civil Rights 
Act of 1964, an attempt is made to coordinate with the 
United States Equal Employment Opportunity Commis
sion, hereinafter referred to as the EEOC, investigations 
relating to acts of discrimination prohibited by law. I



77

have the authority to enter into concilation agreements 
or to approve conciliation agreements which have been 
entered into with government contractors or subcontract
ors in cases where reasonable cause exists to believe that 
their activities are outside of the provisions of Executive 
Order 11246. In most cases, where the OEO believes that 
a government contractor or subcontractor is acting out
side of the provisions of Executive Order 11246 an em
ployee under my direction and supervision investigates 
the charge to determine whether or not reasonable cause 
exists to believe that the Executive Order has been vio
lated. If the investigator finds reasonable cause to believe 
that the Executive Order has been violated, the OEO 
attempts to settle all differences by entering into an 
agreement which in some cases will provide for an award 
of backpay to the affected employees and an Affirmative 
Action Program to compel the government contractor or 
subcontractor to comply with the provisions of the Execu
tive Order.
3. I have read and am familiar with the complaint which 
has been filed in the United States District Court for the 
Eastern District of Texas, Beaumont Division, styled: 
Wesley P. Bernard, Et Al v. Gulf Oil Company, Et Al, 
Civil Action No. B-76-183-CA, hereinafter referred to 
as the suit. The complaint was brought by six employees 
of Gulf Oil Corporation, hereinafter referred to as Gulf, 
at its Port Arthur Refinery against Gulf Oil Company 
and the Oil, Chemical and Atomic Workers International 
Union, Local Union No. 4-23. In their complaint these 
individuals have alleged that Gulf and the Union have 
discriminated against them in violation of Title VII of 
the Civil Rights Act of 1964 and the Civil Rights Act 
of 1866. The issues were the subject of a conciliation



78

agreement signed April 14, 1976, by representatives of 
Gulf, the EEOC and the OEO. The charges which have 
been raised in the suit have been the subject of an OEO 
investigation which has been conducted over the past 
several years. Issues which have been raised in the suit 
have been investigated by the OEO which, among other 
things, interviewed employees of Gulf at its Port Arthur 
Refinery, examined all relevant documents and business 
records of Gulf, conducted on-site investigations at Gulf’s 
Port Arthur Refinery, and held numerous meetings with 
Gulfs executives. It is my opinion that this investigation 
was thorough and comprehensive. It covered all Negro 
employees employed by Gulf on July 2, 1965, whose 
seniority date antecedes January 1, 1957, the defined 
affected class of Negro employees in the conciliation 
agreement.
4. After the major terms of the conciliation agreement 
had been settled between Gulf and the EEOC, those 
groups met with representatives of .the OEO to discuss 
further actions required by Gulf in order to be in com
pliance with Executive Order 11246. As a result of this 
meeting, a Certificate of Review and Approval was at
tached to the conciliation agreement as Page 11 and 12 
thereto which certified that upon completing certain af
firmative action requirements with regard to employment, 
Gulf would be in full compliance with all of the provisions 
of Executive Order 11246, as amended, at its Port 
Arthur Refinery.
5. It is my opinion that the conciliation agreement as 
entered into between Gulf, the EEOC and the OEO is a 
fair and reasonable settlement of all charges that Gulf 
has discriminated against its affected class employees at



79

its Port Arthur Refinery. In addition, I have no objection 
to allowing Gulf to pursue fulfillment of the terms of the 
aforesaid conciliation agreement, including the payment 
of backpay awards and obtaining the releases of those 
affected class members who wish to participate in this 
settlement.

G. C. WILLIAMS

Subscribed and Sworn to before me 
this 4th Day of June 1976.

EIDAN A. BROWN 
Notary Public in and for 
Jefferson County
My Commission expires Aug. 14, 1976



80

MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT GULF OIL COMPANY’S MOTION 

TO LIMIT COMMUNICATIONS WITH ANY 
POTENTIAL OR ACTUAL CLASS MEMBER

[Caption Omitted in Printing]

Filed June 10, 1976

I.

Preliminary Statement
This action is instituted pursuant to Title YII of the 

Civil Rights Act of 1964, 42 U.S.C. § 2000-e et seq. and 
42 U.S.C. § 1981. The Complaint, filed on May 18, 1976, 
alleges a class action on behalf of: (a) all black em
ployees employed by defendant Gulf Oil Company’s Re
finery of Port Arthur, Texas; (b) all black employees 
formerly employed by the defendant in Port Arthur, 
Texas; and (c) all black applicants for employment at 
Gulf Oil Company who have been rejected for employ
ment at said Company.

II.
Statement of Facts

The issues stated below arise from an order issued by 
the Honorable William M. Steger on May 28, 1976, 
limiting communications with any potential or actual class 
member. This order, attached to this memorandum as 
Exhibit A, was issued pursuant to a Motion By Gulf To 
Limit Communications With Any Potential Or Actual 
Class Member filed on May 27, 1976, and is effective 
until the Honorable Joe J. Fisher can hear the matter 
upon formal motion.



81

As a result of the prohibitions contained in the May 
28, 1976 order, plaintiffs’ attorneys have been forbidden 
to communicate, directly or indirectly, with any members 
of the plaintiffs’ class except for the six named plaintiffs 
to the lawsuit.

One of the attorneys for the plaintiffs is Charles E. 
Cotton of the New Orleans, Louisiana law firm of Cotton, 
Jones & Dennis. Another is Stella M. Morrison, a Port 
Arthur, Texas attorney of the law firm of Morrison, 
Floyd & Morrison. Associated with them in this instant 
action are several attorneys employed by the N.A.A.C.P. 
Legal Defense and Educational Fund, Inc., a non-profit 
corporation engaged in furnishing legal assistance in cases 
involving claims of racial discrimination. The Legal De
fense Fund, which is entirely separate and apart from 
the National Association for the Advancement of Colored 
People (N.A.A.C.P.), has been approved by a New York 
court to function as a legal aid organization. Since 1940, 
the Legal Defense Fund has furnished legal assistance in 
civil rights matters in state and federal courts throughout 
the nation, usually in conjunction with local counsel such 
as Mr. Cotton and Ms. Morrison in this matter. See 
N.A.A.C.P. v. Button, 371 U.S. 415, 421, n. 5 (1963).1

1. Mr. Barry L. Goldstein, LDF staff attorney, has developed 
considerable expertise in cases involving employment discrimination. 
He has been involved in several key precedent setting cases, among 
which have been Rodgers v. United States Steel Corporation, 508 
F.2d 152, (3rd Cir.), cert, denied, 420 U.S. 969 (1975); Albemarle 
Paper Co. v. Moody, 422 U.S. 405 (1975); Franks v. Bowman 
Transportation Co., 47 L.Ed.2d 444 (1976); Pettway v. American 
Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974); Gamble v. 
Birmingham Southern Railroad Co., 514 F.2d 678 (5th Cir. 1975); 
Ford v. United States Steel Corporation, 520 F.2d 1043 (5th Cir. 
1975). Mr. Ulysses G. Thibodeaux, Earl Warren Fellow with the 
Legal Defense Fund, has been trained in civil rights litigation by 
the Legal Defense Fund. His area of concentration has been in fair



82

In undertaking to represent the named plaintiffs, plain
tiffs’ attorneys did not accept or expect any compensation 
from them, nor do they expect to receive any compensa
tion from any additional named plaintiffs who may here
after be added, or from any member of the plaintiff class. 
Mr. Cotton and Ms. Morrison expect to be compensated 
only by such attorneys’ fees as may eventually be awarded 
by the court. The fees collected for work done by the 
employees of the Legal Defense Fund will be paid over 
to that non-profit corporation and will not be paid to the 
individual staff lawyers. Plaintiffs’ entitlement to an award 
of counsel fees by the court would not be affected by the 
number of individuals named as parties plaintiff since the 
fees are not paid by the clients but, rather, they are taxed 
as costs to the defendant. See 42 U.S.C. § 20Q0e-5(k).

III.
Statement of Issues Presented

1. Whether the district court is possessed of the au
thority to grant an order restricting communications with 
any potential or actual class member.

2. Whether an order of a district court restricting 
communications with any potential or actual class mem
ber is unconstitutional in violation of the First Amend
ment protections of freedom of speech, freedom of associ
ation, and privacy of association and the Due Process 
Clause of the Fifth Amendment.

3. Whether an order of a district court restricting 
communications with class members is unconstitutional

employment litigation. Mr. Charles E. Cotton has developed con
siderable expertise in general civil rights litigation, but more par
ticularly in fair employment litigation. Ms. Stella Morrison, prior 
to entering private practice, was associated with the Equal Employ
ment Opportunity Commission.



83

on its face and as applied in that the order overbroadly 
infringes on constitutionally protected activities.

IV.
ARGUMENT

A district court can adopt rules governing the adminis
tration of laws before it. Those rules, however, must be 
consistent with the letter and spirit of the federal rules 
of Civil Procedure and with the Acts of Congress. 
Rodgers v. United States Steel Corporation, 508 F.2d 
152 (3rd Cir.), cert, denied, 420 U.S. 969 (1975); 28 
U.S.C. §2071. In Rodgers, the Court was confronted 
with a district court order limiting communications with 
potential members of a class by the plaintiffs or their 
attorneys pursuant to a local rule of the district court.2 
In granting the plaintiffs a writ of mandamus, the Third 
Circuit specifically held that the district court was not 
empowered by Congress under Rule 3 of the Federal 
Rules of Civil Procedure3 or 28 U.S.C. § 20714 to limit

2. Local Rule 34(d) of the District Court for the Western Dis
trict of Pennsylvania stated:

No communication concerning such action (class action) shall 
be made in any way by any of the parties thereto, or by their 
counsel, with any potential or actual class member, who is not 
a formal party to the action, until such time as an order may 
be entered by the Court approving the communication.

3. Rule 83, Fed. R. Civ. reads in pertinent part:
Each district court by action of a majority of the judges there
of may from time to time make and amend rules governing 
its practice not inconsistent with these rules. . . .  In all cases 
not provided for by rule, the district courts may regulate their 
practice in any manner not inconsistent with these rules.

4. 28 U.S.C. § 2071 reads:
The Supreme Court and all courts established by Act of Con
gress may from time to time prescribe rules for the conduct 
of their business, such rules shall be consistent with acts of 
congress and rules of practice and procedure prescribed by the 
Supreme Court.



84

communications between plaintiffs, or their attorneys, and 
third parties when such communication sought to en
courage common participation in a class action lawsuit. 
A district court could not issue an order pursuant to a 
rule such as Local Rule 34(d) prior to class action 
certification.

The local rule in Rodgers, supra, was promulgated 
pursuant to Rule No. 7 suggested by the Manual For 
Complex Litigation, the very same suggested rule being 
relief on by the defendant in this instant action. Rodgers 
suggested that the panel which drafted the Manual “went 
too far in its apparent assumption that [a district court 
had] unreviewable discretion . . .  to impose a prior re
straint on communication or association,” and that “the 
panel had no power to enlarge the statutory rule making 
authority of the district courts”. 508 F.2d at 165.

Rodgers recognized that important constitutional rights 
of freedom of speech and association were involved in 
a rule limiting communications with class members, but 
declined to decide the constitutional issues. However, 
in another aspect of this litigation, the District Court for 
the Western District of Pennsylvania issued protective 
orders prohibiting disclosure of information contained in 
a deposition and placing a memorandum under impound
ment. The plaintiffs’ petition for a writ of mandamus was 
granted based on a finding that the judge’s orders were 
unconstitutional. Because the orders constituted a prior 
restraint on petitioners’ counsel’s freedom of speech in 
violation of the First Amendment, the district court was 
not acting within the “proper sphere of its lawful power”. 
Rodgers v. United States Steel Corporation and Honorable 
Hubert I. Ieitelbaum, No. 76-1340 (3rd Cir., June 3, 
1976). A copy of that decision is attached as Exhibit B.



85

Standing alone, the opinions in Rodgers v. United 
States Steel Corporation are sufficiently compelling au
thorities to permit denied of defendant’s motion. The 
significant constitutional questions involved which result 
from an order limiting communications with class mem
bers, however, merit further discussion. The Supreme 
Court has specifically addressed the question and ruled 
that an order limiting communications would infringe 
upon constitutionally protected collective activity by civil 
rights advocates. See NAACP v. Button, 371 U.S. 415 
(1963). An order prohibiting communications and as
sociations with members of a group seeking legal redress 
for civil rights violations is constitutionally impermissible:

In the context of NAACP objectives, litigation is 
not a technique of resolving private differences, it 
is a means for achieving the lawful objectives of 
equality of treatment by all government, federal, 
state and local, for the members of the Negro com
munity in this country. It is thus a form of political 
expression. . . .

The NAACP is not a conventional political party; 
but the litigation it assists, while serving to vindi
cate the legal rights of members of the American 
Negro community, at the same time and perhaps 
more importantly, makes possible the distinctive 
contribution of a minority group to the ideas and 
beliefs of our society. For such a group, association 
for litigation may be the most effective form of 
political association. 371 U.S. at 429, 431 (em
phasis added).

Following NAACP v. Button several cases concerning 
injunctive restraints on “solicitation” which were far more 
narrow than the order sought by the defendant in this 
case held such restraints unconstitutional. See, Brother



86

hood of Railroad Trainmen v. Virginia ex rel State Bar, 
377 U.S. 1 (1964); United Mine Workers v. Illinois State 
Bar Association, 389 U.S. 217 (1967); United Trans
portation Union v. State Bar of Michigan, 401 U.S. 576 
(1971). “The common thread running through our de
cision in NAACP v. Button, Trainmen, and United Mine 
Workers is that collective activity undertaken to obtain 
meaningful access to the courts is a federal right within 
the protection of the First Amendment.” United Trans
portation Union, supra, 401 U.S. at 585.

The defendant’s memorandum states on page 3 that 
communications between plaintiffs’ counsels and actual 
and potential class members “could seriously prejudice 
Gulf in its defense of this case and the conciliation ef
forts which have been conducted by the Equal Employ
ment Opportunity Commission and the Office for Equal 
Opportunity, U.S. Department of the Interior.” This 
reason is insufficient to justify the imposition of limits 
on communications. Past judicial attempts to curb even 
mass-media dissemination of “out-of-court publications 
pertaining to a pending case,” Bridges v. California, 314 
U.S. 252, 268 (1941), have been held unconstitutional. 
To justify criminal punishment (let alone prior restraint) 
there must be an imminent peril to the administration of 
justice. Craig v. Harney, 331 U.S. 367 (1947). In the 
present situation, there is no pending litigation, but only 
a non-judicial conciliation agreement of attempts to curb 
out of court statements concerning pending litigation are 
unconstitutional, then surely an order limiting communi
cations with class members with respect to a settlement 
agreement is likewise unconstitutional. Moreover, the 
conciliation agreement to which the defendant refers 
grows out of Commission Charge No. AU68-9-154E. This



87

present lawsuit is concerned with charges filed by em
ployees of the defendant before the EEOC in June, 1967. 
These charges were not the basis of the present “settle
ment” entered into between Gulf Oil Company, the 
EEOC and the U. S. Department of the Interior. Gulf’s 
assertion on page 1 of its memorandum that “[t]he issues 
which have been raised in this lawsuit have been the 
subject of settlement negotiations between Gulf, the U. S. 
Equal Employment Opportunity Commission and the Office 
for Equal Opportunity, U. S. Department of Interior” 
is erroneous. The plain truth is that Gulf Oil Co. did not 
wish to entertain conciliation discussions to resolve the 
complaints of employees which forms the springboard for 
this present action. A copy of a letter to that effect from 
the EEOC to Mr. Wesley P. Bernard, one of the named 
plaintiffs, is attached as Exhibit C.

Most importantly private individuals have a right to a 
full remedy from the affects of racial discrimination in 
employment. Franks v. Bowman Transportation Co., 47 
L.E.D. 2d 444 (1976); Albermarle Paper Company v. 
Moody, 422 U.S. 405 (1975). Individuals have a right 
to pursue their remedy even after there has been a “pat
tern and practice” suit litigated on their behalf by the 
federal government. Williamson v. Bethlehem Steel Corp., 
468 F.2d 1201, 1201 cert, denied, 411 U.S. 931 (1973); 
Rodriques v. East Texas Motor Freight, 505 F.2d 40, 65 
(5th Cir. 1974) cert, granted on other issues. NO. 75- 
718 (May 25, 1976) A fortiori, a private suit which is 
designed to seek a complete remedy to employment dis
crimination is appropriate after a conciliation agreement 
which has not been approved by a federal court and for 
which there has been no finding that it fully or even sub
stantially remedies the practices of discrimination at Gulf.



88

The order sought by Gulf Oil comes to court with a 
“heavy presumption against its constitutional validity,” 
thus placing “a heavy burden [on Gulf] of showing a 
justification for the imposition of such a restraint.” Or
ganization for a Better Austin v. Keefe, 402 U.S. 415, 
419 (1971).

Apparently, the defendant is concerned that communi
cations may prejudice its defense of this case and its con
ciliation efforts. The order it seeks is replete with admini- 
tions against solicitation. Suffice it to say that a govern
ment “may not, under the guise of prohibiting profes
sional misconduct, ignore constitutional rights.” NAACP 
v. Button, supra, 371 U.S. at 439. Imposition of a prior 
restraint of speech and association under the guise of 
preventing solicitation is beyond the power of the Court 
under the First Amendment. Additionally, the concern 
for solicitation is mitigated by the American Bar Associa
tion’s belief that the ordinary rules against solicitation are 
to be relaxed when litigation is “wholesome and benefi
cial”. ABA COMM. ON PROFESSIONAL ETHICS, 
OPINIONS, NO. 148, at 311 (1935) The policy under
lying Title VII litigation has been favorably viewed. See, 
Griggs v. Duke Power Co., 401 U.S. 424 (1971); Al
bemarle Paper Co. v. Moody, supra. In fact, to encourage 
Title VII litigation, Congress saw fit to include a provi
sion for attorneys’ fees. See 42 U.S.C. § 2000e-5(b); 
Johnson v. Georgia Highway Express, 488 F.2d 714 (5th 
Cir. 1974). An order limiting communications then, 
would serve to subvert the judicially-recognized public 
policy favoring vigorous prosecuting of employment dis
crimination actions.

The order sought by defendant Gulf Oil Company and 
granted by the Honorable William Steger on May 28,



89

1976 is, by its own wording not limited to communica
tions directed at solicitation. It bans all communications, 
however innocuous or lawful those communications might 
be. Consequently, it suffers the fatal defect of overbreadth. 
NAACP v. Button, supra, cautioned that “[BJecause First 
Amendment freedoms need breathing space to survive, 
government may regulate in the area only with narrow 
specificity. 371 U.S. at 433. The order which Gulf Oil 
now seeks to extend simply does not meet Button’s test 
of “narrow specificity”.

If the defendant’s motion for an order limiting com
munications with any actual or potential class member is 
granted, a discriminatory regulation of free speech and 
free association would result. It would unfairly disadvant
age those black employees who wish to be informed about 
various labor practices or about ways in which to seek 
additional relief not agreed to in the recently consummated 
conciliation agreement. Every black employee has the 
right to seek legal assistance, to refuse to sign a waiver 
of his rights, and to ask the court in a proper proceeding 
to grant more relief from a pattern of systemic discrimina
tion, every black worker has the right to choose to hear 
comments about the problem of racial discrimination in 
employment by attorneys knowledgeable in that parti
cular field. Every black worker at Gulf Oil Co. has the 
right to communicate with attorneys who purport to 
represent them in a class action involving their very liveli
hood, e.g., their jobs, their salaries, their promotions, 
their back pay, etc. All of these rights are violated by an 
order restricting communications.

The above infringements are all the more evident when 
viewed in light of the freedom of communication enjoyed 
by the defendants. Defense Counsel are free to consult with



90

their client(s) with respect to any matter relevant to this 
lawsuit. Their clients are able to freely communicate with 
black employees in the course of regular work activity 
and thus are able to explain their interpretation of the 
conciliation agreement at will. The order sought by de
fendant is so one-sided as to constitute a denial of due 
process of law. Such a violation occurs by a federally 
imposed discrimination which, if imposed by a state, 
would violate the Equal Protection Clause. Bolling v. 
Sharpe, 347 U.S. 497 (1954). This one-sidedness is 
clearly disadvantageous to black workers who have a right 
to know about employment practices and conciliation 
agreements from sources other than the defendant who is 
alleged to have commited violations of the equal employ
ment laws.

Imposition of an order limiting communications would 
have a detrimentally inhibitory effect on an actual or 
potential class members’ right to counsel. Meaningful cor 
operation and exchanges would be stifled because of a 
class members’ reluctance to approach counsel on matters 
pertaining to the pending litigation. Suppression of all or 
any communications between counsel and client, or be
tween counsel and potential client is tantamount to a 
denial of freedom of association. Little imagination is 
needed to discern that such a drastic action would be 
contrary to the principle that “[ijnviolability of privacy 
in group associations, may in many circumstances be in
dispensable to preservation of freedom of association, par
ticularly where a group espouses dissident beliefs”. 
NAACP v. Alabama ex rel John Patterson, 357 U.S. 449, 
462 (1958). Indeed, the right to associate with one’s own 
counsel has been called “unqualified.” Chandler v. Fretag, 
348 U.S. 3, 9 (1954). Certainly, this is especially true in



91

a complex fair employment action where “laymen cannot 
be expected to know how to protect their rights when 
dealing with practiced and carefully counselled adver
saries. . . Brotherhood of R, Trainmen v. Virginia, 
supra, 377 U.S. at 7.

Finally a limit on communications would impose un
conscionable barriers on the ability of plaintiffs’ counsel 
to practice law and present a case worthy of the trust 
placed in them by the plaintiffs. Plaintiffs’ counsel would 
be deprived of the opportunity to interview large groups 
of employees for helpful factual data and would addition
ally be deprived of the opportunities to conduct general 
inquiries. In sum, an order limiting communication would 
severely impede the ability of counsel to effectively pre
sent the claims of class members, to discover and assess 
the strengths and weaknesses of the case, and to define 
the scope of the issues with greater specificity. By so doing, 
the progress of the case will be substantially curtailed, 
a result entirely inconsistent with the directive of Section 
706(f)(5) of Title VII:

It shall be the duty of the judge designated . . .  to 
assign the case for hearing at the earliest practicable 
date and to cause the case to be in every way ex
pedited.

CONCLUSION
For the reasons stated, the Defendant’s Motion To 

Limit Communications With Any Actual Or Potetial 
Class Member should be denied.

[Signatures Omitted in Printing]

[Certificate of Service omitted in printing]



92

FIRST SUPPLEMENTAL MEMORANDUM IN 
SUPPORT OF GULF’S MOTION TO 

MODIFY ORDER

[Caption Omitted in Printing]

Filed June 16, 1976

This First Supplemental Memorandum is submitted 
pursuant to an order by the Court on June 11, 1976, 
that the parties to this action will have until Tuesday, 
June 15, 1976, to submit final memoranda concerning 
Gulf’s Motion to Modify Judge Steger’s order dated 
May 28, 1976.

During the hearing before the Court on June 11, 
1976, counsel for the Plaintiffs informed the Court that 
he opposed a continuation of Judge Steger’s Order entered 
May 28, 1976, and he opposed Gulf’s Motion to Modify 
Judge Steger’s Order which would allow Gulf to comply 
with the terms of the Conciliation Agreement entered 
into between Gulf, the Equal Employment Opportunity 
Commission (EEOC) and the Office for Equal Oppor
tunity, U.S. Department of the Interior (OEO). In sup
port of his position, counsel for Plaintiffs relied upon 
the case of Rogers v. U.S. Steel Corporation, 508 F.2d 
152 (3rd Cir.), cert, denied, 420 U.S. 969 (1975). It is 
Gulf’s position that the decision in the Rogers case is 
totally inapplicable to the facts and circumstances in 
this case for many reasons.

The most important reason why the Rogers decision 
is inapplicable to this case is that the Local Rule 34(d) 
considered by the court in that case is entirely different 
from the order which Gulf seeks to have entered in this



93

case. As the court stated in the R ogers case, Local Rule 
34(d) of the District Court for the Western District of 
Pennsylvania did not incorporate the exceptions which 
were suggested by the M anual fo r  C om plex  L itiga tion . 
In addition, Local Rule 34(d) was adopted from an 
earlier edition of the M anual which did not include the 
protected exemptions which are now included in the re
vised M anual. See M anua l fo r  C om plex L itiga tion , sec
tion 1.41, p. 106 CCH Edition 1973, a copy of which 
is attached hereto as Exhibit A. Thus, the R ogers court 
did not consider the current suggested order concerning 
limitation of communications with potential class members 
as contained in the M anual for C om plex L itiga tion . The 
current order suggested by the M anual avoids the con
stitutional issues raised by the plaintiffs in this case since 
it specifically exempts constitutionally protected communi
cation when the substance of such communication is filed 
with the court.

A second reason why the Rogers decision is inappli
cable to the present case is that we are concerned here 
with an order of the Court and not a Local Rule as was 
the court in the Rogers case. The court stated in Rogers:

“The limited issue before us, however, is whether 
the District Court can, prior to making a class ac
tion termination, insist on compliance with Local 
Rule 34(d) as a condition to the further considera
tion of a Rule 23(d)(1) motion. We hold that it 
may not.” Rogers supra at 164. (Emphasis added.)

The present case does not present an issue such as the 
above since not only is there no Local Rule involved here, 
but such a Local Rule is not made a condition to the further 
consideration of a Rule 23(d)(1) motion.



94

More importantly, the Order entered by Judge Steger 
in the present case was made necessary due to the actions 
of Plaintiffs’ counsel. Thus, in this case activities of 
counsel for the Plaintiffs have indicated that the order 
suggested by the Manual for Complex Litigation should 
be entered limiting communications with potential class 
members.

During the conference with the Court on June 11, 
1976, Gulf suggested that the Court modify Judge Steger’s 
Order to include the exemptions stated in Pretrial Order 
No. 15 in the Manual for Complex Litigation. Judge 
Steger’s Order did not include the exemptions since he 
wanted to maintain the status quo of the case until this 
Court returned and assumed control of the case. In 
essence, Judge Steger wanted to limit all communications 
with potential class members during the Court’s absence. 
It was recognized in the concurring opinion to Rogers 
that the current rule in the Manual is properly drawn: 
“The suggested rule found in the appendix to the Manual 
for Complex Litigation, Part 1, Section 1.41, . . . is 
more narrowly drawn and, as the majority points out, 
specifically exempts communications protected by a con
stitutional right.” Rogers supra at 166.

In order that the exemptions as provided for in the 
Manual for Complex Litigation can be incorporated into 
Judge Steger’s Order, Gulf has attached hereto as Ex
hibit B a suggested order which would modify Judge 
Steger’s Order to include the exemptions. In addition to 
including the exemptions, Exhibit B modifies Judge 
Steger’s Order to allow Gulf to comply, under the Court’s 
supervision, with the requirements of the Conciliation 
Agreement as outlined in Gulf’s pending Motion to 
Modify.



95

Finally, Gulf would like to point out to the Court 
the strong mandate of the Fifth Circuit Court of Appeals 
as stated in United States v. Allegheny-Ludlum Industries, 
Inc., 517 F.2d 826 (5th Cir. 1975) that private settle
ments of charges that the employer has violated Title 
VII should be encouraged. Judge Thornberry in speaking 
for the court stated:

“As early as 1968, Judge Bell wrote for this Court: 
‘It is thus clear that there is great emphasis in Title 
VII on private settlement and the elimination of un
fair practices without litigation.’ Latis v. Crown 
Zellerbach Corp., (5th Cir. 1968), 398 F.2d 496, 498 
(emphasis added). Subsequently, in Dent v. St. Louis- 
San Francisco Ry. Co., (5th Cir. 1969), 406 F.2d 
399, 402, Judge Coleman advanced the same thesis:

Thus it is quite apparent that the basic philosophy 
of these statutory provisions is that voluntary 
compliance is preferable to court action and that 
efforts should be made to resolve these employ
ment rights by conciliation both before and after 
court action, (emphasis added.)
In Culpepper v. Reynolds Metals Co., (5th Cir. 

1970), 421 F.2d 888, 891, we declared that ‘the 
central theme of Title VII is ‘private settlement’ as 
an effective end to employment discrimination,’ cit
ing Oatis. Next, in Hutchings v. United States In
dustries, Inc., (5th Cir. 1970), 428 F.2d 303, 309, 
Judge Ainsworth stated:

[I]t is clear that Congress placed great emphasis 
upon private settlement and the elimination of 
unfair practices without litigation (citing Oatis) 
on the ground that voluntary compliance is prefer
able to court action, (citing Dent). Indeed, it is 
apparent that the primary role of the EEOC is to 
seek elimination of unlawful employment prac



96

tices by informal means leading to voluntary com
pliance. (emphasis added.)
Our recent excursions into this area have not 

detoured from the foregoing principles, but have 
emphasized instead their practical value.” United 
States v. Allegheny-Ludlum Industries, Inc. supra 
at 846 and 847.

Conclusion

In view of the above stated authorities, Gulf’s Motion 
to Modify should be granted.

[Signatures Omitted in Printing]

[Certificate of Service Omitted in Printing]



97

EXHIBIT A

Appendix of Materials 
* * *

§ 1.41 Sample Pretrial Order No. 15—Prevention of 
Potential Abuses of Class Actions

(To be promptly entered in actual and potential class 
action orders unless there is a parallel local rule)

In this action, all parties hereto and their counsel are 
forbidden directly or indirectly, orally or in writing, to 
communicate concerning such action with any potential 
or actual class member not a formal party to the action 
without the consent and approval of the proposed com
munication and proposed addressees by order of this 
Court. Any such proposed communication shall be pre
sented to this Court in writing with a designation of or 
description of all addressees and with a motion and pro
posed order for prior approval by this Court of the pro
posed communication. The communications forbidden by 
this order include, but are not limited to, (a) solicitation 
directly or indirectly of legal representation of potential 
and actual class members who are not formal parties to 
the class action; (b) solicitation of fees and expenses and 
agreements to pay fees and expenses from potential and 
actual class members who are not formal parties to the 
class action; (c) solicitation by formal parties to the class 
action of requests by class members to opt out in class 
actions under subpargraph (b )(3 ) of Rule 23, F.R. 
Civ.P.; and (d) communications from counsel or a party 
which may tend to misrepresent the status, purposes and 
effects of the class action, and of any actual or potential 
Court orders therein which may create impressions tend-



98

ing, without cause, to reflect adversely on any party, any 
counsel, this Court, or the administration of justice. The 
obligations and prohibitions of this order are not exclu
sive. All other ethical, legal and equitable obligations are 
unaffected by this order.

This order does not forbid (1) communications be
tween an attorney and his client or a prospective client, 
who has on the initiative of the client or prospective 
client consulted with, employed or proposed to employ 
the attorney, or (2) communications occurring in the 
regular course of business or in the performance of the 
duties of a public office or agency (such as the Attorney 
General) which do not have the effect of soliciting repre
sentation by counsel, or misrepresenting the status, pur
poses or effect of the action and orders therein.

If any party or counsel for a party asserts a constitu
tional right to communicate with any member of the class 
without prior restraint and does so communicate pursuant 
to that asserted right he shall within five days after such 
communication file with the Court a copy of such com
munication, if in writing, or an accurate and substantially 
complete summary of the communication if oral.

A hearing at which applications may be presented for 
relaxation of this order and proposed communications 
with actual or potential members of the class is hereby 
set fo r_________ a t _______________________ m.

Dated th is_______ day o f______________ , 19______

JUDGE

* * *



99

EXHIBIT B 

ORDER

[Caption Omitted in Printing]

The within and foregoing motion of Gulf Oil Cor
poration to modify Judge Steger’s Order dated May 28, 
1976, having been considered;

IT IS ORDERED:
(1) That Gulf’s motion to modify Judge Steger’s 

Order dated May 28, 1976 is granted;
(2) That Judge Steger’s Order dated May 28, 1976 

be modified so as to read as follows:

In this action, all parties hereto and their counsel 
are forbidden directly or indirectly, orally or in 
writing, to communicate concerning such action 
with any potential or actual class member not a 
formal party to the action without the consent and 
approval of the proposed communication and pro
posed addressees by order of this Court. Any such 
proposed communication shall be presented to this 
Court in writing with a designation of or description of 
all addressees and with a motion and proposed or
der for prior approval by this Court of the pro
posed communication. The communications for
bidden by this order include, but are not limited to, 
(a) solicitation directly or indirectly of legal repre
sentation of potential and actual class members who 
are not formal parties to the class action; (b) solici
tation of fees and expenses and agreements to pay



100

fees and expenses from potential and actual class 
members who are not formal parties to the class 
action; (c) solicitation by formal parties to the 
class action of requests by class members to opt 
out in class actions under subparagraph (b )(3 ) of 
Rule 23, F.R.Civ.P.; and (d) communications from 
counsel or a party which may tend to misrepresent 
the status, purposes and effects of the class action, 
and of any actual or potential Court orders therein 
which may create impressions tending, without 
cause, to reflect adversely on any party, any coun
sel, this Court, or the administration of justice. The 
obligations and prohibitions of this order are not 
exclusive. All other ethical, legal and equitable 
obligations are unaffected by this order.

This order does not forbid (1) communications 
between an attorney and his client or a prospective 
client, who has on the initiative of the client or 
prospective client consulted with, employed or pro
posed to employ the attorney, or (2) communica
tions occurring in the regular course of business or 
in the performance of the duties of a public office 
or agency (such as the Attorney General) which do 
not have the effect of soliciting representation by 
counsel, or misrepresenting the status, purposes or 
effect of the action and orders therein.

If any party or counsel for a party asserts a con
stitutional right to communicate with any member 
of the class without prior restraint and does so 
communicate pursuant to that asserted right, he 
shall within five days after such communication 
file with the Court a copy of such communication,



101

if in writing, or an accurate and substantially com
plete summary of the communication if oral.

(3) That Gulf be allowed to proceed with the 
payment of back pay awards and the obtaining of 
receipts and releases from those employees covered 
by the Conciliation Agreement dated April 14, 
1976, between Gulf, the U.S. Equal Employment 
Opportunity Commission and the Office for Equal 
Opportunity, U.S. Department of the Interior;

(4) That the Clerk of Court mail a notice to all 
employees of Gulf at its Port Arthur Refinery who 
are covered by the Conciliation Agreement and who 
have not signed receipts and releases for back pay 
awards informing them that they have 45 days from 
the date of the Clerk’s notice to accept the offer as 
provided for by the Conciliation Agreement or such 
offer will expire until further order of the Court;

(5) That the contents of the notice be the same 
as that set out in Appendix I;

(6) That Gulf bear the expense of mailing the 
notice and a copy of the Court’s Order to the in
dividuals covered by item (4) above;

(7) That all employees who have delivered re
ceipts and releases to Gulf on or before 55 days 
from the date of the Clerk’s notice shall be deemed 
to have accepted the offer as contained in the 
Conciliation Agreement;

(8) That any further communication, either di
rect or indirect, oral or in writing (other than those 
permitted pursuant to paragraph (2) above) from



102

the named parties, their representatives or counsel 
to the potential or actual class members not formal 
parties to this action is forbidden;

(9) That Gulf inform the Court 65 days from 
the date of the Clerk’s notice to be sent by the Clerk 
of Court of the names of potential or actual class 
members who have accepted the offer of back pay 
and signed receipts and releases pursuant to the 
Conciliation Agreement and the names of those who 
have refused or failed to respond.

United States District Judge

June 1976.



103

Appendix I
Pursuant to the Court’s order, I have been asked to 

notify you that there is pending in the United States 
District Court for the Eastern District of Texas a law
suit styled Bernard, et al v. Gulf Oil Company and Oil, 
Chemical and Atomic Workers International Union, Local 
Union No. 4-23, being Civil Action No. B-76-183-CA. 
This is a suit by six individual employees at Gulfs Port 
Arthur Refinery who have brought this suit on their 
behalf and on behalf of all other individuals who are 
similarly situated, and alleging that Gulf and the Union 
have discriminated against them and the class they repre
sent in violation of Title VII of the Civil Rights Act of 
1964 and the Civil Rights Act of 1866. This notice is 
being sent to you because you have been identified as 
an actual or potential class member who at some later 
date may be entitled to become a member of the class 
which the named Plaintiffs seek to represent.

You have received a notice from Gulf dated May 1, 
1976, that you are entitled to an award of back pay 
under a Conciliation Agreement which has been negoti
ated on your behalf by the United States Equal Employ
ment Opportunity Commission and the Office for Equal 
Opportunity, U.S. Department of Interior. The Court 
has asked me to inform you that at this time you have 
a choice of whether to accept the offer from Gulf dated 
May 1, 1976, and receive the back pay award as stated 
in that letter or you may decline to accept that offer at 
this time and at some later date be considered for in
clusion in the class of individuals which the Plaintiffs 
seek to represent in the above mentioned lawsuit. If you



104

decide to accept Gulf’s offer, you should execute the 
receipt and release enclosed in Gulf’s letter to you dated 
May 1, 1976, and return it to Gulf within 45 days from 
the date of this letter. If this is done, you will receive 
your back pay award shortly thereafter.

If you do not execute the receipt and release and de
liver it to Gulf within 45 days from the date of this 
letter, it will be presumed that you do not wish to accept 
the offer contained in Gulf’s letter of May 1, 1976. Any 
award you might receive as a result of the above men
tioned lawsuit will depend upon whether you are included 
in any class so certified by the Court and whether the 
class is declared entitled to an award of back pay by the 
Court.

Clerk, U.S. District Court, 
Eastern District of Texas



MEMORANDUM OF LAW IN OPPOSITION 
TO DEFENDANT GULF OIL COM

PANY’S MOTION TO MODIFY ORDER

[Caption Omitted in Printing]

I
PRELIMINARY STATEMENT

This action is instituted pursuant to Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. § 2000-e et seq. and 
42 U.S.C. § 1981. The Complaint, filed on May 18, 1976, 
alleges a class action on behalf of: (a) all black em
ployees employed by defendant Gulf Oil Company’s Re
finery of Port Arthur, Texas, (b) all black employees 
formerly employed by the defendant in Port Arthur, 
Texas; and (c) all black applicants for employment at 
Gulf Oil Company who have been rejected for employ
ment at said Company.

II
STATEMENT OF FACTS

On May 28, 1976, the Honorable William M. Steger 
entered an order limiting communications with any poten
tial or actual class member. The order was to be effective 
until the Honorable Joe J. Fisher could hear the matter 
upon formal motion. On June 8, 1976, Gulf Oil filed a 
Motion To Modify Judge Steger’s Order dated May 28, 
1976. The motion seeks to bar all further communications 
with actual or potential class members as well as to allow 
Gulf, the EEOC, and the Department of Interior to pro
ceed under the terms of a Conciliation Agreement dated 
April 14, 1976. This Agreement grows out of a Commis
sion Charge of the EEOC and is not the result of efforts

105



106

to conciliate charges brought before the EEOC against 
Gulf Oil by individual class complainants. Further, the 
Conciliation Agreement is not an attempted settlement of 
a civil action brought in a federal court.

A hearing on the Motion To Limit Communications 
was held before the Honorble Joe J. Fisher on June 11, 
1976. Judge Fisher deferred ruling on the motion pending 
the submission of memoranda on the Motion to Modify.

Ill
ARGUMENT

Gulf Oil’s Motion To Modify Order is predicated on 
the order entered by the Honorable William M. Steger 
on May 28, 1976. The legal propriety of that order was 
addressed in plaintiffs’ Memorandum of Law In Opposi
tion To Defendant Gulf Oil Company’s Motion to Limit 
Communications with Any Actual or Potential Class 
Member, submitted to this Court on June 10, 1976. The 
arguments advanced in that memo are hereby incorpor
ated by reference into this present memo. To summarize, 
plaintiffs aver that (1) the order is not within the power 
of a district court to grant. See Rodgers v. United States 
Steel Corporation, 508 F.2d 152 (3rd Cir.), cert, denied, 
420 U.S. 969 (1975); Rodgers v. United States Steel 
Corporation and Honorable Hubert I. Teitelbaum, No. 
76-1340 (3rd Cir., June 1976); (2) the order infringes 
upon constitutionally protected First Amendment freedom 
of speech, freedom of association, and privacy of associa
tion. See NAACP v. Button, 371 U.S. 415 (1963); 
Brotherhood of Railroad Trainmen v. Virginia ex rel 
State Bar, 377 U.S. 1 (1964); United Mine Workers v. 
Illinois State Bar Association, 389 U.S. 217 (1967); 
United Transportation Union v. State Bar of Michigan,



107

401 U.S. 576 (1971); (3) the order violates the Due 
Process Clause of the Fifth Amendment in that it unfairly 
discriminates in favor of the defendants. See Bolling v. 
Sharpe, 347 U.S. 497 (1954); and, (4) the order is un
constitutional on its face because of the fatal defect of 
overbreadth. See NAACP v. Button, supra. A finding, 
therefore, of constitutional infirmity with respect to the 
Motion To Limit Communications destroys the merits of 
defendant’s Motion To Modify the order since the latter is 
based upon the validity of the former.

Gulf Oil Company relies on two cases, Weight Watch
ers of Philadelphia, Inc., v. Weight Watchers Interna
tional, Inc., 455 F.2d 770 (2nd Cir. 1972), and Ameri
can Finance System, Inc., v. Harlow, 65 F.R.D. 572 
(D. Md. 1974) to support its Motion To Modify. These 
cases, however, concerned themselves with defendants’ at
tempts to negotiate settlements of purported class action 
suits with individual members of the asserted class after 
a lawsuit had been filed. In the instant case, Gulf is at
tempting not only to restrain communications with actual 
or potential class members, but also is seeking to continue 
offering backpay settlements to affected class members in 
a Conciliation Agreement which was not the subject of 
a court action.1 The plaintiffs are simply attempting to

1. The plaintiffs are not trying to stop the Company from tender
ing offers under the Conciliation Agreement. These tenders are made 
pursuant to a private agreement, not judicially approved, between 
two agencies of the Government and the Company. Neither the 
Union defendant nor the plaintiffs’ class were parties to this agree
ment. The legality of the waivers remains to be determined. United 
States v. Allegheny Ludlum Industries, 517 F.2d 826 (5th Cir. 
1975) cert, denied U.S.L.W. (1976). However, the plaintiffs and 
the class they represent have an unfettered right to consult with 
attorneys experienced in civil rights and fair employment litigation 
concerning their alternatives. See Exhibit A-C.



108

communicate to other asserted class members the issues 
involved in the present lawsuit and also the problems 
and alternatives to the Conciliation Agreement entered 
into between Gulf Oil, the EEOC and the Department of 
the Interior. {See Affidavits attached hereto as Exhibits 
A-C). To disallow this right to the plaintiffs would be 
to ignore the teachings of Rodgers v. U. S. Steel, supra, 
and NAACP v. Button, sppra.

Regardless of how the defendants proceed, the right 
to challenge the validity and fairness of the proposed non
judicial “settlement” is not pre-empted by the defend
ants’ actions or the purported class members’ responses. 
See, e.g. Williamson v. Bethlehem Steel Corp., 468 F.2d 
1201 (2nd Cir. 1972), cert, denied, 411 U.S. 931 
(1973); Rodriguez v. East Texas Motor Freight, 505 
F.2d 40, 65 (5th Cir. 1974), cert, granted on other is
sues, 44 U.S.L.W. 3661 (May 25, 1976); United States 
v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826 
(5th Cir. 1975), cert, denied, 44 U.S.L.W. 3593 (Apr. 
20, 1976).

In its memorandum to the Court, Gulf Oil Co. relies 
heavily on the affidavits of EEOC and Interior Officials 
in support of the Conciliation Agreement. Initially, it 
must be emphasized that the adequacy of the conciliation 
agreement is not at issue at this time. Moreover, without 
any presentation of evidence it is, of course, impossible 
for this Court to evaluate the adequacy of the Concilia
tion Agreement. But, the agreement on its face does not 
appear to satisfy the dictates of Title VII. For instance, 
the Conciliation Agreement does not provide for well- 
established types of relief such as advance-level entry and 
job by-pass; there is a one-shot opportunity to bid and



109

transfer into a different job classification; there are no 
provisions for a firm recruitment program; there is no 
firm commitment on goals and timetables; the affirmative 
action program is merely a statement of policy rather 
than a realistic, programmatic approach to the under
utilization of minorities in the defendant’s work-force. 
The goals provided, one black, mexican-american, or 
woman for each four whites selected for jobs from which 
blacks are underutilized (the goal is one to six for super
visory positions) is inadequate to remedy the practices 
of discrimination in an area where over 50% of the pop
ulation is black; there is no relief from unlawful employ
ment testing programs. These are only some of the ex
amples of how the Agreement does not begin to ap
proach the relief requested by the plaintiffs. In fact, the 
settlement agreement simply does not satisfy the pur
pose underlying fair employment litigation which is to 
“make whole” those persons injured by discriminatory 
employment practices. Albemarle Paper Co. v. Moody, 
422 U.S. 405 (1975).

Additionally, the notices that were sent out to backpay 
eligibles under the Conciliation Agreement did not ex
plain the types and extent of relief in the agreement, and 
did not explain the method by which backpay was com
puted. Further, the affected employees were not told that 
acceptance of the agreement would be assumed if after 
the passage of thirty days, the employees had not respond
ed to Gulf’s notice. All of the above reasons make com
munications between the class attorneys with potential 
and/or actual class members essential. It cannot be as
sumed that because the government agencies, EEOC and 
Department of Interior, have approved the settlement of 
a Commissioner’s Charge that the practices of discrimi



110

nation have been remedied; as the Fifth Circuit stated 
in Rodriquez:

While the Government may be willing to compro
mise in order to gain prompt, and perhaps nation
wide, relief, private plaintiffs, more concerned with 
full compensation for class members, may be willing 
to hold out for full restitution. 505 F.2d at 66.

Gulf’s concern that there be a limit on communications 
so that “. . . individuals . . . might make their own inde
pendent decision concerning the acceptance of the back
pay award”, (p.4 of defendant’s memorandum to the 
Court) is not in accord with the principle that “ . . . the 
Constitution protects expression and association without 
regard to the . . . truth, popularity, or social utility of 
the ideas and beliefs which are offered.” NAACP  v. 
Button, supra, at 444-445. Plaintiffs submit that the de
fendant, Gulf Oil, has not more business telling them how 
to deal with their associates that the plaintiffs have in 
instructing Gulf how to deal with its associates and 
advisors. Moreover, the class members have a right to be 
informed by counsel as to their rights under the civil 
rights laws.

CONCLUSION
For the reasons stated, the Defendant’s Motion To 

Modify The Order should be denied.

[Signatures Omitted in Printing]

[Certificate of Service Omitted in Printing]



I l l

EXHIBIT “A”

AFFIDAVIT

[Caption Omitted in Printing]

STATE OF NEW YORK 
COUNTY OF NEW YORK

BARRY L. GOLDSTEIN, being duly sworn, deposes 
and says:

1. I am one of the attorneys for the plaintiffs herein. 
I am employed as a staff attorney with the NAACP Legal 
Defense and Educational Fund, Inc., in New York City. 
I have worked there as an attorney since August, 1971. 
During the years of my employment I have been contin
uously and almost exclusively involved in the litigation 
in federal courts in various states of employment dis
crimination cases.

2. The Legal Defense and Educational Fund, Inc., is 
a non-profit corporation engaged in furnishing legal as
sistance in cases involving claims of racial discrimination. 
I am an attorney admitted to the practice of law before 
the Appellate Division of the State of New York, the 
United States District Court for the Southern and Eastern 
Districts of New York, the United States Court of Ap
peals for the Second, Fourth, Fifth and Sixth Circuits 
and Supreme Court of the United States.

3. The Legal Defense Fund has been approved by the 
Appellate Division of the State of New York to function 
as a legal aid organization. It is entirely separate and 
apart from the National Association for the Advancement 
of Colored People (N.A.A.C.P.).



112

4. Since 1940, the Legal Defense Fund has furnished 
legal assistance in civil rights matters in state and federal 
courts throughout the nation, usually in conjunction with 
local counsel. See N.A.A.C.P. v. Button, 371 U.S. 415, 
421, n.5 (1963). The United States Supreme Court has 
cited the organization as one “which has a corporate rep
utation for expertness in presenting and arguing the diffi
cult questions of law that frequently arise in civil rights 
litigation.” NAACP v. Button, id. at 422. As pointed out 
by Chief Judge Brown attorneys employed at the Legal 
Defense Fund have represented individuals in hundreds 
of civil rights cases in the Fifth Circuit and in the dis
trict courts of that circuit, Miller v. Amusement Enter
prises, Inc., 426 F.2d 534, 539, n.14 (5th Cir. 1970).

5. Specifically attorneys at the Legal Defense Fund 
have represented the plaintiffs in many landmark cases 
brought pursuant to Title VII which have been decided 
in the Supreme Court,1 the Fifth Circuit,1 2 and in other 
Circuits.3

1. See e.g., Griggs v. Duke Power Company, 401 U.S. 424 
(1971); Phillips v. Martin-Marietta Corp., 400 U.S. S42 (1971); 
McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973); Johnson 
v. Railroad Express Agency, 421 U.S. 4S4 (1975); Albemarle Paper 
Co. v. Moody, 422 U.S. 405 (1975); Franks v. Bowman Trans
portation Co., 47 L.Ed.2d 444 (1976); Brown v. General Service 
Administration, 44 U.S.L.W. 4704 (1976).

2. King v. Georgia Power Co., 474 F.2d 906 (1973); Johnson 
v. Georgia Highway Express, 488 F.2d 714 (1974); see e.g., Johnson 
v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (1974); Pettway v. 
American Cast Iron Pipe Co., 494 F.2d 211 (1974); Gamble v. 
Birmingham Southern Railroad Co., 514 F.2d 678 (1975); Ford 
v. United States Steel Corporation, 520 F.2d 1043 (1975); Watkins
v. Scott Paper C o . ,____ F.2d (5th Cir. 1976), 11 EPD
ff 10,880.

3. Chance v. Bd. of Examiners, 458 F.2d 1167 (2nd Cir. 1972); 
Patterson v. N.M.D.U., 514 F.2d 767 (2nd Cir. 1975); Rodgers 
v. U.S. Steel Corp., 508 F.2d 152 (3rd Cir. 1975); Robinson v.



113

6. In undertaking to represent the named plaintiffs 
in this action, neither I nor any other attorney at the 
Legal Defense Fund has accepted or expects to receive 
any compensation from them, nor do we expect to re
ceive any compensation from any additional named 
plaintiffs who may hereafter be added, or from any mem
ber of the plaintiffs class.

7. The fees collected for work done by me or any 
employee of the Legal Defense Fund in regard to this 
litigation will result from court-awarded attorneys’ fees 
which are taxed as costs to a defendant(s). See 42 U.S.C. 
§2G0Qe-5(k). These fees will be paid over to the Legal 
Defense Fund and will not be paid directly to me or to 
any other staff attorney.

8. At this stage in the proceedings, plaintiffs’ counsel 
find it necessary to communicate with members of the 
proposed class of black employees alleged to have been 
subjected to racial discrimination by Gulf Oil Company 
and the Oil, Chemical, and Atomic Workers Interna
tional Local Union 4-23. Otherwise, plaintiffs and their 
attorneys will be restrained from effectively representing 
the claims of class members, completing discovery, and 
defining the scope of the issues with specificity. Only by 
communicating with members of the proposed class with 
individual complaints of racial discrimination can plain
tiffs’ counsel investigate systematic and individual racial

Lorittard Co., 444 F.2d 791 (4th Cir. 1971); Patterson v. American
Tobacco Co., __ ___F.2d____ , 11 EPD ([ 10,728 (4th Cir. 1976);
Newman v. Avco, 451 F.2d 743 (6th Cir. 1971); Rice v. Gates 
Rubber Co., 521 F.2d 782 (6th Cir. 1975); Waters v. Wisconsin 
Steel Works, 502 F.2d 1309 (7th Cir. 1974) cert, denied 44 U.S.L.W. 
3670 (May 25, 1976); Rogers v. International Paper Co., 510 F.2d 
1340 (8th Cir. 1975) vac. and rem. 44 U.S.L.W. 3199 (Oct. 7, 
1975).



114

discrimination in employment at Gulf Oil Company and 
supplement documents and records to be obtained from 
defendant company.

9. Also it is essential that plaintiffs’ attorneys be able 
to communicate with class members in order to inform 
them of their rights under the fair employment laws and 
to answer any questions or concerns which they may 
have. This is of crucial importance at this time because 
of the offers being tendered to class members under the 
Conciliation Agreement entered into between the EEOC 
and Gulf Oil Company.

BARRY L. GOLDSTEIN

Sworn to and subscribed before me 
this 16th day of June, 1976

GERTRUDE A. REYNOLDS 
Notary Public



115

EXHIBIT B

AFFIDAVIT OF ULYSSES GENE THIBODEAUX 

[Caption Omitted in Printing]

STATE OF NEW YORK
COUNTY OF NEW YORK

ULYSSES GENE THIBODEAUX, being duly sworn, 
deposes and says:

1. I am one of the attorneys for the plaintiffs herein. 
I am licensed to practice law in the State of Louisiana 
and am presently serving as an Earl Warren Fellow 
with the NAACP Legal Defense and Educational Fund, 
Inc. in New York City.

2. The Earl Warren Fellowship Program is part of 
the legal training program of the Legal Defense Fund. 
It functions as a vehicle to prepare young attorneys in 
substantive civil rights litigation and federal procedure. 
As an Earl Warren Fellow, I have been involved in var
ious areas of civil rights law. My primary area of con
centration, however, has been in fair employment litiga
tion.

3. This action was commenced by the filing of a com
plaint on May 18, 1976.

4. On May 22, 1976, the named plaintiffs in this ac
tion held a meeting in Port Arthur, Texas. In attendance 
were black workers who are employed or were employed 
by Gulf Oil Company in Port Arthur, Texas and who 
are members of the class alleged in this action.



116

5. The meeting on May 22, 1976 was requested by 
the named plaintiffs in this action.

6. Attorneys representing the named plaintiffs were 
invited to attend the meeting to HisFuiFllie issues in-" 
volved.io -the lawsuit, the types of relief requested, and 
to generally explain some of the administrative and legal 
problems inherent in fair employment litigation. I, along

“ with Charles E. Cotton of New Orleans, Louisiana and 
Stella M. Morrison of Port Arthur, Texas accepted the 
invitations to speak to the group and to answer questions 
concerning the pending lawsuit and the Conciliation 

"Agreement enterejjTTnSaZEa ^ ^
the United States Department of the Interior on April 
14, 1976.

7. Contrary to the Company’s assertion in its mem
oranda filed on May 27 and June 8, 1976, I did not at A 
arty time, during the course of the meeting advise actual
or potential class members not to accept the defendant’s / 
"ftffer of settlement, nor did I state to the assembled group 1 i 
that counsel for the plaintiffs could obtain twice the /  
amount of backpay for the class as has been offered to \

Agreement- of April 14, )
1976. *

8. The ability of plaintiffs and their counsel to pre
sent effectively the claims of class members, to discover 
the case, and to define the scope of the issues with greater 
specificity depends in significant part on their having ac
cess to class members, to investigate their complaints, to 
prepare witnesses, and to supplement the available de
fendants’ documentary materials by interviewing their



117

employees. At this stage, such communication becomes 
appropriate and necessary.

ULYSSES GENE THIBODEAUX

Dated:

Sworn to and subscribed before 
me this 16th day of June, 1976.

GERTRUDE A. REYNOLDS 
Notary Public



118

EXHIBIT C

AFFIDAVIT OF STEFFA M. MORRISON

[Caption Omitted in Printing]

STATE OF TEXAS 
COUNTY OF JEFFERSON

STELLA M. MORRISON, being duly sworn, deposes 
and says :

1. I am one of the attorneys for the plaintiffs herein: 
I am associated with the Port Arthur, Texas firm of 
Morrison, Floyd and Morrison and I am licensed to prac
tice law in the State of Texas.

2. I accepted an invitation to attend a meeting of 
named plaintiffs and interested parties held in Port Arthur, 
Texas on May 22, 1976.

3. During the meeting on May 22, 1976, I answered 
questions directed to me by several of the interested par
ties with respect to the issues and problems contem-

I plated in this lawsuit.
4. During the course of the May 22, 1976 meeting, 

Mr. Ulysses Gene Thibodeaux, one of the attorneys for
, the plaintiffs, contrary to the assertions made by the de

fendant Company, did not recommend the refusal of the 
offer of settlement by Gulf Oil Company pursuant to the

j Conciliation Agreement of April 14, 1976, nor did Mr.
I Thibodeaux represent that attorneys for the plaintiffs
j could secure twice the monetary settlement of the Con-
| ciliation Agreement in a civil action in federal court.
1



119

5. In undertaking to represent the named plaintiffs, 
^neither T nor anv of the attorneys representing the plain
tiffs accepted or__ expect any compensation from them,
nor do we expect to receive any compensation..£mm_any
additional named plaintiffs who may hereafter be added, 
or from any member of the plaintiff class. We expect 
to be compensated only by such attorney’s fees as may 
eventually be awarded by the court. My entitlement to 
an award of counsel fees by the court would not be af
fected by the number of individuals named as parties 
plaintiff since the fees are not paid by the clients but, 
rather, they are taxed as costs to the defendant(s). See 
42 U.S.C. §2000e-5(k).

6. The ability of plaintiffs and their counsel to present 
effectively the claims of class members, to discover the 
case, and to define the scope of the issues with greater 
specificity depends in significant part on their having ac
cess to class members, to investigate their complaints, to 
prepare witnesses, and to supplement the available de
fendants’ documentary materials by interviewing their 
employees. At this stage, such communication becomes 
appropriate and necessary.

7. As of this date thirty-four individual members of the 
class have signed retainer agreements which retain myself 
and my co-counsel as their attorneys to represent them 
in litigation designed to fully protect their rights under 
the fair employment laws and to seek a full remedy for



120

any injury they my have suffered as a result of the un
lawful employment practices of the defendants.

STELLA M. MORRISON 
Stella M. Morrison

Dated:

Sworn to and subscribed before 
me this 17th day of June, 1976

GWENDOLYN BLAKE
Notary Public in and for 
Jefferson County, Texas



121

MOTION BY DEFENDANT GULF OIL 
CORPORATION TO DISMISS COMPLAINT

[Caption Omitted in Printing]

Comes now Gulf Oil Corporation, a Defendant in the 
above styled cause, and moves the Court for an order to 
dismiss the Complaint herein pursuant to Rule 12(b) (1) 
and (6) of the Federal Rules of Civil Procedure and for 
an order granting such other, further and different re
lief as the Court may deem just and proper.

This motion to dismiss the complaint for lack of sub
ject matter jurisdiction and for failure to state claims 
upon which relief may be granted is made on the follow
ing grounds:

(1) The jurisdictional prerequisites for maintaining 
this action contained in Title VII of the Civil Rights Act 
of 1964, as amended, have not been met;

(2) This action is barred by the applicable statute of 
limitations;

(3) This action is barred by laches;
(4) The Complaint fails to set forth the elements 

of Plaintiffs’ purported claims sufficiently to show that 
Plaintiffs are entitled to relief;

( 5) The Complaint fails to plead with particularity the 
circumstances showing that the Plaintiffs have met the 
requirements of Title VII of the Civil Rights Act of 1964, 
as amended, 42. U.S.C. §2000e, et seq.; and

(6) The Complaint fails to state a claim upon which 
relief can be granted.



122

In connection with this motion, the undersigned De
fendant relies upon the Complaint filed herein, as well as 
upon the supporting memorandum to be filed.

[Signatures Omitted in Printing]

[Certificate of Service Omitted in Printing]



123

ORDER

[Caption Omitted in Printing]

The within and foregoing Motion of Gulf Oil Cor
poration to Dismiss having been considered:

IT IS ORDERED that the Complaint in this action 
be dismissed, with prejudice, and that the Plaintiffs bear 
all costs of this action.

United States District Judge



124

ORDER

[Caption Omitted in Printing]

Filed June 22, 1976

The within and foregoing motion of Gulf Oil Corpora
tion to modify Judge Steger’s Order dated May 28, 1976, 
haying been considered;

IT IS ORDERED:

(1) That Gulf’s motion to modify Judge Steger’s Or
der dated May 28, 1976 is granted;

(2) That Judge Steger’s Order dated May 28, 1976 
be modified so as to read as follows:

In this action, all parties hereto and their counsel are 
forbidden directly or indirectly, orally or in writing, to 
communicate concerning such action with any potential 
or actual class member not a formal party to the action 
without the consent and approval of the proposed com
munication and proposed addressees by order of this 
Court. Any such proposed communication shall be pre
sented to this Court in.writing with a designation of or
description of all addressees and with a motion and pro
posed order for prior approval by this Court of the pro
posed communication. The communications forbidden by 
this order include, but are not limited to, (a] solicita
tion directly or indirectly of legal representation_of poten
tial and actual class memberT^^foare not formal par
ties to the class action; (b) solicitation of fees and ex
penses and agreements to pay fees and expenses from 
potential and actual class members who are not formal 
parties to the class action; (c) solicitation by formal



125

parties to the class action of requests by class members 
to opt out in class actions under subparagraph (b) (3) 
of Rule 23, F.R. Civ. P.; and (d) communications from 
counsel or a party which may tend to misrepresent the 
status, purposes and effects of the class action, and of anv 
actual or potential Court orders therein which may 
create impressions tending, without cause, to reflect ad
versely on any party, anv counsel, this Court, or the ad
ministration of justice. The obligations and prohibitions 
of this order are not exclusive. All other ethical, legal 
and equitable obligations are unaffected by this order.

This order does not forbid (1) communications be
tween an attorney and his client or a prospective client, 
who has on the initiative of the client or prospective 
client consulted with, employed or proposed to employ 
the attorney, or (2) communications occurring in the 

.regular course of business or in the performance of the 
duties of public office or agency (such as the Attorney 
General) which do not have the effect of soliciting re- 
presentation by counsel, or misrepresenting the status, 
purposes or effect of the action and orders therein.

If anv party or counsel for a party ass.er.ts„u„c.Qnstitu- 
tional right to communicate with any member of the 
classwitEoi5F~pnoF restraint and does so communicate 
pursuant to that asserted right, he shall within five days 

S^teF^ucE~cmnmun^ with the Court a copy of
.such communication, if in writing, or an accurate and 
substantial^ 
if oral.

(3) That Gulf be allowed to proceed with the pay
ment of back pay awards and the obtaining of receipts 
and releases from those employees covered by the Con-



126

ciliation Agreement dated April 14, 1976, between Gulf, 
the U, S. Equal Employment Opportunity Commission 
and the Office for Equal Opportunity, U. S. Department 
of the Interior; That the private settlement of charges 
that the employer has violated Title VII is to be en
couraged, United States v. Allegheny-Ludlum Industries, 
Inc., 517 F2d 826 (5th Cir. 1975), cert, denied, 44 U.- 
S.L.W. 3589 (U. S. April 20, 1976).

(4) That the Clerk of the Court mail a notice to all 
employees of Gulf at its Port Arthur Refinery who are 
covered by the Conciliation Agreement and who have 
not signed receipts and releases for back pay awards in
forming them that they have 45 days from the date of the 
Clerk’s notice to accept the offer as_ provided for by the 
Conciliation Agreement or such offer will expire "until 
further order of the Court;

(5) That the contents of the notice be the same as 
that set out in Appendix I;

(6) That Gulf bear the expense of mailing the notice 
and a copy of the Court’s order to the individuals covered 
by item (4) above:

(7) That all employees who have delivered receipts 
and releases to Gulf on or before 55 days from the date 
of the Clerk’s notice shall be deemed to have accepted 
the offer as contained in the Conciliation Agreement;

(8) That any further communication, either direct or 
indirect, oral or in writing (other than those permitted 
pursuant to paragraph (2) above) from the named par
ties, their representatives or counsel to the potential or 
actual class members not formal parties to this action is 
forbidden;



127

(9) That Gulf inform the Court 65 days from the date 
of the Clerk’s notice to be sent by the Clerk of the Court 
of the names of potential or actual class members who 
have accepted the offer of back pay and signed receipts 
and releases pursuant to the Conciliation Agreement and 
the names of those who have refused or failed to re
spond.

It is Plaintiff’s contention that any such provisions as 
hereinbefore stated that limit communication with po
tential class members are constitutionally invalid, citing 
Rodgers v. United States Steel Corporation, 508 F.2d 
152 (3rd Cir. 1975), cert, denied, 420 U.S. 969 (1975). 
This Court finds that the Rodgers case is inapplicable, 
and that this order comports with the requisites set out 
in the Manual for Complex Litigation, Section 1.41 p. 
106 CCH Edition 1973, which specifically exempts con
stitutionally protected communication when the sub
stance of such communication is filed with the Court.

ENTERED this the 22nd day of June, 1976.

JOE J. FISHER
United States District Judge



128

APPENDIX I

Pursuant to the Court’s order, I have been asked to notify 
you that there is pending in the United States District 
Court for the Eastern District of Texas a lawsuit styled 
Bernard, et al v. Gulf Oil Company and Oil, Chemical 
and Atomic Workers International Union, Local Union 
No. 4-23, being Civil Action No. B-76-183-CA. This is 
a suit by six individual employees at Gulf’s Port Arthur 
Refinery who have brought this suit on their behalf and 
on behalf of all other individuals who are similarly sit
uated, and alleging that Gulf and the Union have dis
criminated against them and the class they represent in 
violation of Title VII of the Civil Rights Act of 1964 
and the Civil Rights Act of 1866. This notice is being 
sent to you because you have been identified as an actual 
or potential class member who at some later date may 
be entitled to become a member of the class which the 
named Plaintiffs seek to represent.

You have received a notice from Gulf dated May 1, 
1976, that you are entitled to an award of back pay under 
a Conciliation Agreement which has been negotiated on 
your behalf by the United States Equal Employment Op
portunity Commission and the Office for Equal Oppor
tunity, U. S. Department of Interior. The Court has 
asked me to inform you that at this time you have a 
choice of whether to accept the offer from Gulf dated 
May 1, 1976, and receive the back pay award as stated 
in that letter or you may decline to accept that offer at 
this time and at some later date be considered for in
clusion in the class of individuals which the Plaintiffs 
seek to represent in the above mentioned lawsuit. If you 
decide to accept Gulfs offer, you should execute the re



129

ceipt and release enclosed in Gulf’s letter to you dated 
May 1, 1976, and return it to Gulf within 45 days from 
the date of this letter. If this is done, you will receive 
your back pay award shortly thereafter.

If you do not execute the receipt and release and de
liver it to Gulf within 45 days from the date of this letter, 
it will be presumed that you do not wish to accept the 
offer contained in Gulfs letter of May 1, 1976. Any 
award you might receive as a result of the above men
tioned lawsuit will depend upon whether you are in
cluded in any class so certified by the Court and whether 
the class is declared entitled to an award of back pay 
by the Court.

Clerk, U.S. District Court, 
Eastern District of Texas



130

MOTION FOR PERMISSION TO COMMUNICATE 
WITH MEMBERS OF THE PROPOSED CLASS

[Caption Omitted in Printing] 

Filed July 6, 1976

Plaintiffs hereby respectfully move that the Court grant 
them and their counsel permission to contact and interview
membfitS -oL-th^jaBBQ sed class in this .action, and to 
declare that the leaflet attached hereto as Exhibit A is 
within the constitutionally protected rights of the plain
tiffs and their counsel. Plaintiffs seek this permission 
pursuant to this Court’s Order of June 22, 1976, attached 
hereto as Exhibit B, which limited communications with 
actual or potential class members.

In support of their motion, plaintiffs show the follow
ing:

1. The attached leaflet is a constitutionally protected 
form of political expression. N.A.A.C.P. v. Button, 371 
U.S. 415 (1963).

2. The leaflet furthers the right of black employees of 
Gulf Oil Company’s Refinery in Port Arthur, Texas to 
associate for the purpose of being fairly represented in 
this pending lawsuit. Brotherhood of Railroad Trainmen 
v. Virginia State Bar, 377 U.S. 1 (1964).

3. The .and their counsel to present 
effectively the claims of class members, to discover the 
case, to define the scope of the issues with greater specifi
city, and to explain to class members the provisions of 
the Conciliation Agreement of April, 1976 depends in 
significant part on their having access to class members.



131

Such communication is particularly important in view of 
the 45 day limitation in which affected class members 
have to respond to the offer of settlement contained in the 
Conciliation Agreement.

4. Neither the offer of settlement nor the notice set 
out in Appendix I of the June 22, 1976 Order explains 
the terms of the Conciliation Agreement.

5. A general order allowing communications is appro
priate. v It would be impractical and unworkable for plain
tiffs to Teapply specifically for permission to communicate 
with particular class members.

6. Plaintiffs feel that the attached leaflet is consistent 
with Paragraph 2 of this Court’s Order of June 22, 1976,
i.e., it represents an attempt to assert “a constitutional 
right to communicate with any member of the class with
out prior restraint”. Because the Order is vague, and for 
reasons of prudence^ plain tiffs find It^ppropfiate to seek
this Court’s guidance in this matter.

WHEREFORE, plaintiffs respectfully move that the 
Court grant them and their counsel permission to com
municate with class members concerning this action and 
order that the attached leaflet is a constitutionally pro
tected activity.

[Signatures Omitted in Printing]



132

EXHIBIT A

A T T E N T I O N  
BLACK WORKERS 

OF GULF OIL

The Company has asked you to sign a release. If you 
do, you may be giving up very important civil rights. 
It is important that you fully understand what you are 
getting in return for the release. IT  IS IMPORTANT 
THAT YOU TALK TO A LAW YER BEFORE YOU 
SIGN. These lawyers will talk to you FOR FREE:

STELLA M. MORRISON 
440 Austin Avenue 
Room 516
Port Arthur, Texas 77640 
(713) 985-9358

BARRY L. GOLDSTEIN 
ULYSSES GENE THIBODEAUX 

10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397

CHARLES E. COTTON 
348 Baronne Street 
Suite 500
New Orleans, Louisiana 70112 
(504) 522-2133



133

These lawyers represent six of your fellow workers in 
a lawsuit titled Bernard v. Gulf Oil Co., which was filed 
in Beaumont Federal Court on behalf of all of you. This 
suit seeks to correct fully the alleged discriminatory 
practices of Gulf.

Even if you have already signed the release, talk to 
a lawyer. You may consult another attorney. If neces
sary, have him contact the above-named lawyers for 
more details. All discussions will be kept strictly con
fidential.

AGAIN, IT IS IMPORTANT THAT YOU TALK 
TO A LAWYER. Whatever your decision might be, 
we will continue to vigorously prosecute this lawsuit 
in order to correct all the alleged discriminatory practices 
at Gulf Oil.



134

MEMORANDUM OF LAW IN SUPPORT OF 
PLAINTIFFS’ MOTION FOR PERMISSION 
TO COMMUNICATE WITH MEMBERS OF 

THE PROPOSED CLASS

[Caption Omitted in Printing]

I .

PRELIMINARY STATEMENT
This action is instituted pursuant to Title VII of the 

Civil Rights of 1964, 42 U.S.C. § 2000-e et seq. and 
42 U.S.C. § 1981. The Complaint, filed on May 18, 
1976, alleges a class action on behalf of (a) all black 
employees employed by defendant Gulf Oil Company’s 
Refinery of Port Arthur, Texas, (b) all black employees 
formerly employed by the defendant in Port Arthur, 
Texas, and (c) all black applicants for employment at 
Gulf Oil Company who have been rejected for employ
ment at said Company.

II.
STATEMENT OF FACTS

On June 22, 1976, the Honorable Joe J. Fisher entered 
an Order limiting communications with any potential 
and actual class members who are not formal parties to 
this action. This Order does not forbid communication 
initiated by a client or prospective client and excepts 
constitutionally-protected communications with any mem
ber of the class without prior restraint. The latter excep
tion is subject to the qualification that the Court must be 
notified of the substance of such communications within 
five days after the communication.



135

The June 22 Order permits Gulf Oil to proceed under 
the terms of the April 14, 1976 Conciliation Agreement. 
Gulf Oil is now able to continue offering back pay awards 
and releases to its employees who are covered by the 
Conciliation Agreement. Affected employees will have 
45 days in which to accept the back pay awards. At the 
expiration of 45 days, the offers will expire.

III.

ARGUMENT
The plaintiffs’ unqualified contention that there should 

be no restrictions on the actual and potential class mem
bers to this action to be fully informed of their rights 
has been addressed in the previous memoranda sub
mitted to this Court on June 10 and 17, 1976. The 
arguments advanced therein are specifically incorporated 
into this memorandum, along with the affidavits accom
panying the June 17th memo. An unfettered opportunity 
to communicate generally with proposed class members 
is made even more imperative when viewed in terms 
of the significance of the purported waivers. As a con
dition to the receipt of a back pay award, an eligible 
member of the affected class must execute a blanket 
waiver of all claims of racial discrimination against Gulf 
Oil occurring on or before the date of the release, or 
which might arise as the result of future effects of past 
or present employment practices. In essence, an affected 
employee or former employee is being asked to re
linquish the right to be free from all forms of racially 
discrimniatory employment practices at Gulf; addition
ally, he is being asked to surrender his right to sue in 
order to vindicate civil rights which have been deemed



136

to be of high public importance. See Griggs v. Duke 
Power Co., 401 U.S. 424 (1971); Alexander v. Gardner 
Denver, 415 U.S. 36 (1974); Albemarle Paper Co. v. 
Moody, 422 U.S. 405 (1975). The waivers are a trans
parent attempt to frustrate the effectuation of an im
portant Congressional policy against racial discrimination 
in employment, “one of the most deplorable forms of 
discrimination known to our society.” Culpepper v. 
Reynolds Metal Co., 421 F.2d 888, 891 (5th Cir. 1970).

Because the waivers may possibly serve to undermine1 
important individual and class rights and public policy 
considerations, affected class members must be informed 
of their right to seek counsel. Their right to seek the 
advice of attorneys is incontestable. See N.A.A.C.P. v. 
Button, 371 U.S. 415 (1963); Brotherhood of Railroad 
Trainmen v. Virginia State Bar, 377 U.S. 1 (1964); 
United Mine Workers v. Illinois Bar, 389 U.S. 217 
(1967); United Transportation Union v. Michigan Bar, 
401 U.S. 576 (1971). Professional legal advice is especi
ally important, also, because of the complicated legal and 
factual questions involved in fair employment litigation. 
The defendant has the benefit of legal practitioners. In 
contrast, the purported class members in this action are 
left to speculate on a proper course of action. For in
stance, the waiver is not accompanied by a copy of the 
Conciliation Agreement, nor does it seek to explain to 
a worker the structural changes, if any, contemplated 
by the Agreement. Rather than seeking to inform the 
workers so that intelligent and knowing decisions could

1. The plaintiffs do not in any manner concede the legal efficacy 
of the waivers. The validity of these waivers will have to be subjected 
to judicial scrutiny during the consideration of the merits of this 
litigation.



137

be made, the waivers dissuaded fruitful discussions of 
the matter.

In its Memorandum In Support of Gulf Oil Companys’ 
Motion To Modify Order (p. 4) and during the June 11, 
1976 hearing on this Motion, the defendant asserted that 
a limitation on communications would enable affected 
employees to “make their sum independent decisions con
cerning the acceptance of the back pay award”. It ap
pears eminently proper that before such “independent 
decisions” can be made, black workers and their counsel 
should be allowed to communicate. Gulf Oil will com
municate with all of the affected members who fall 
eligible under the terms of the Conciliation Agreement. 
This communication will include a notice extending an 
offer to back pay on the condition that an employee ex
ecute, within forty-five days, a release which would waive 
all of the employees’ claims against Gulf Oil. Even 
though this communication may be supervised by this 
Court, it would be manifestly inequitable to allow Gulf 
Oil to so communicate while barring plaintiffs and their 
counsel from representing or advising these individuals 
with respect to the provisions of the Conciliation Agree
ment as well as any other aspect of employment discrimi
nation. Plaintiffs and their attorneys have every intention 
of representing the best interests of the class. As the 
incorporated affidavits point out, plaintiffs’ attorneys are 
knowledgeable and skilled in fair employment litigation, 
and have not accepted any fee for their legal representa
tion.

Plaintiffs feel that the leaflet attached to the motion 
as Exhibit A is within the range of permissible activity 
sanctioned by the June 22, 1976 Order. However, in 
the interest of staying within ethical boundaries and pro



138

tecting ourselves from contempt citations, plaintiffs and 
their counsel seek an order allowing distribution of the 
leaflet and opportunities to interview proposed class 
members. It is felt that an offer to communicate to the 
plaintiffs their rights under the fair employment laws, 
the relief provided by the Conciliation Agreement, and 
the possible consequences of signing the general waivers 
is a reasonable undertaking in view of the factors listed 
above, especially when the confidentiality of these dis
cussions under the attorney-client relationship will be 
zealously guarded.

IV.
CONCLUSION

Plaintiffs and their counsel should be permitted to com
municate generally with actual and potential class mem
bers employed by Gulf Oil Company since the denial of 
this request would unreasonably restrict counsels’ right 
to practice law and the right of the named plaintiffs and 
proposed class members to counsel of their own choosing. 
It is important that the usual protection of confidentiality 
between attorney-client communications be afforded here. 
Moreover, denial of the motion would abridge the rights 
of freedom of speech and freedom of association to plain
tiffs’ counsel, the named plaintiffs, and members of the 
proposed class.

[Signatures Omitted in Printing]

[Certificate of Service Omitted in Printing]



139

MEMORANDUM ON BEHALF OF GULF OIL COR
PORATION IN OPPOSITION TO PLAINTIFFS’ 
MOTION FOR PERMISSION TO COMMUNICATE

WITH MEMBERS OF THE PROPOSED CLASS

[Caption Omitted in Printing]

Filed July 15, 1976

On July 6, 1976, the Defendant Gulf Oil Corporation 
(hereinafter referred to as Gulf) was served with Plain
tiffs’ Motion for Permission to Communicate with Mem
bers of the Proposed Class. Attached to Plaintiffs’ Mo
tion was “Exhibit A” which contained a statement which 
Plaintiffs’ counsel seeks to have distributed to an un
designated group of “black workers of Gulf Oil”. (Plain
tiffs’ Exhibit A to its Motion will hereinafter be referred 
to as “the proposed leaflet”). The Plaintiffs do not dis
close how the proposed leaflet will be distributed to the 
unidentified group of “black workers of Gulf Oil”.

The Plaintiffs contend that the distribution of the pro
posed leaflet is consistent with the Court’s order dated 
June 22, 1976, which placed strict limits on communica
tions concerning this action between all parties thereto, 
their counsel and any potential or actual class member 
not a formal party to the action. Apparently, the Plain
tiffs seek to assert this Motion pursuant to the portion of 
the Court’s order which allows communications with po
tential or actual class members when such proposed com
munications are presented to the Court in writing pur
suant to a formal motion and proposed order. However, 
the Plaintiffs have not complied with the terms of the 
order since it provides “any such proposed communica



140

tion shall be presented to this Court in writing with a 
designation of or description of all addresses and with 
a motion and proposed order for prior approval by this 
Court of the proposed communication”. The Plaintiffs’ 
attorneys have not provided a designation or description 
of all addresses who are to receive the leaflet.

More importantly, the proposed leaflet falls directly 
within the scope of those communications which are 
strictly forbidden by the Court’s order. The communica
tions strictly forbidden by the order are as follows:

“ (a) Solicitation directly or indirectly of legal 
representation of potential and actual class mem
bers who are not formal parties to the class action;

(b) Solicitation of fees and expenses and agree
ments to pay fees and expenses from potential and 
actual class members who are not formal parties to 
the class action;

(c) Solicitation by formal parties to the class 
action or request by class members to opt out in 
class actions under subparagraph (b )(c) of Rule 
23, F. R. Civ. P.; and

(d) Communications from counsel or a party 
which may tend to misrepresent the status, purposes 
and affects of the class action, and of any actual 
or potential court orders herein which may create 
impressions tending, without cause, to reflect ad
versely on any party, any counsel, this Court, or the 
administration of justice.”

The proposed leaflet which the Plaintiffs seek to have 
distributed to the undesignated group of black employees 
falls within one or more of the above forbidden com
munications. Although the proposed leaflet does not ex



141

pressly state that its purpose is to solicit directly or in
directly legal representation of the person receiving the 
leaflet, language in the proposed leaflet tends to suggest 
that the attorneys in this case already represent all “black 
workers of Gulf Oil”. The second paragraph of the 
pamphlet states, “These lawyers represent six of your 
fellow workers in a lawsuit titled Bernard v. Gulf Oil 
Company which was filed in Beaumont in Federal Court 
on behalf of all of you.” Until this Court determines 
otherwise, it is impossible to know whom the Plaintiffs 
represent in this case. Certainly it cannot be said that 
the Plaintiffs represent all persons who will receive a copy 
of this leaflet. Even if it can be assumed that the leaflet 
will be distributed to “black workers of Gulf Oil” it can
not be said that the Plaintiffs in this suit represent all of 
those individuals unless and until the Court so rules. 
Consequently, the proposed leaflet not only tends to 
solicit directly or indirectly the legal representation of all 
“black workers of Gulf Oil”; but it misrepresents to them 
that they are indeed already represented by the Plain
tiffs in this case.

The Court’s order forbids the distribution of this leaflet 
in that it “may tend to misrepresent the status, pur
poses and effects of the class action and of any actual 
or potential Court orders herein which may create im
pressions tending, without cause, to reflect adversely 
on any party, any counsel, this Court or the administra
tion of justice.” It can be seen from the above paragraph 
that the proposed leaflet tends to misrepresent the fact 
that all “black workers of Gulf Oil” are being represented 
by the Plaintiffs’ attorneys in this suit. First, the huge 
letters at the top of the leaflet which states “Attention



142

Black Workers of Gulf Oil” misrepresents a material fact. 
The leaflet indicates that the company (Gulf) has asked 
all of the “black workers of Gulf Oil” to sign a release. 
This is not the case. Only those black employees who 
have received benefits under the Conciliation Agreement 
have been asked to sign a release. There are other black 
workers at Gulf’s Port Arthur Refinery who have not been 
asked to sign a release since they did not receive benefits 
under the Conciliation Agreement. More importantly, 
however, the leaflet does not indicate that the controversy 
before this Court is limited only to black employees at 
Gulf’s Port Arthur Refinery. If copies of the leaflet hap
pen to be “passed on” to black workers at the hundreds 
of Gulf installations throughout the United States a great 
amount of confusion could result. If this happens, it may 
become necessary to clarify the misrepresentations made 
in the proposed leaflet by sending letters to all black 
workers of Gulf Oil Corporation in the United States in 
an effort to clarify the situation. Certainly, the parties to 
this suit do not wish to burden the Court with such 
possibilities.

The second sentence of the proposed leaflet indicates 
that if a “black worker” signs a release, he may be giving 
up “very important civil rights”. This statement absolutely 
misrepresents the facts in this case and would create im
pressions which would reflect adversely upon the benefits 
which have been negotiated on behalf of black employees 
at Gulf’s Port Arthur Plant by two Federal Agencies, the 
Equal Employment Opportunity Commission and the Of
fice of Equal Opportunity. Furthermore, the notice tends 
to reflect adversely upon the Court’s order which required 
the Clerk to send notices to the potential class members 
informing them that they may accept the benefits under



143

the Conciliation Agreement. The individuals who would 
receive a copy of the leaflet may get the impression that 
the Court has ruled that by signing the release important 
civil rights have been given up. Such misrepresentations 
and impressions are expressly prohibited by the Court’s 
order dated June 22, 1976.

It can be seen from this discussion that the proposed 
leaflet is the type of communication which the Court’s 
order specifically sought to prevent. It is the type of com
munication which will serve to confuse, misrepresent, 
and distort the issues involved in this lawsuit in addition 
to having the potential effect of confusing “black workers” 
at other Gulf facilities in Texas and across the United 
States.

Turning now to the Memorandum in Support of the 
Plaintiffs’ Motion for Permission to Communicate with 
Members of the Proposed Class, several erroneous state
ments must be corrected. The Plaintiffs indicate that the 
affected class members do not have the right to seek 
advice of attorneys. This is an inaccurate statement since 
the Court’s order specifically allows “communications be
tween an attorney and his client or a prospective client, 
who has on the initiative of the client or prospective client 
consulted with, employed or proposed to employ the at
torney”. Consequently, any member of the potential or 
actual class may on his own initiative consult with or seek 
the advice of any attorney. The Plaintiffs request to dis
tribute the proposed leaflet is just another attempt on 
their part to make unqualified statements regarding the 
purposes and effects of this lawsuit to unsophisticated 
black employees whose rights have been protected by the 
combined efforts of two Federal Agencies. Furthermore,



144

all potential class members in this case received a copy 
of the Court’s order which informed them that they may 
communicate with an attorney concerning this case if 
they take the initiative to contact that attorney.

With reference to Gulf’s previous statement that the 
affected employees should be able to “make their own 
independent decisions concerning the acceptance of the 
back pay award”, the Plaintiffs state that it appears “im
minently proper” that before such “independent deci
sions” can be made, black workers and their counsel 
should be allowed to communicate. It is abundantly clear 
to Gulf and it should be abundantly clear to the Plaintiffs 
in this case that the Court’s order does not prevent any
one from communicating with their counsel. Gulf does 
not understand why the Plaintiffs continue to raise this 
issue when the issue has been covered by the express terms 
of the Court’s order.

The Plaintiffs state that Gulf will communicate with all 
potential class members since it will be sending a “notice” 
extending an offer of back pay on the condition that an 
employee execute, within 45 days, a release which would 
waive all the employee’s claims against Gulf. It goes 
without saying that the notice to which the Plaintiffs refer 
was one ordered to be sent by the Court under signature 
of the Clerk of Court to the potential class members. 
Gulf has not sent notices of the potential class members. 
Gulf is bound by the terms of the Court’s order just as 
are the Plaintiffs. Gulf has no greater right or no lesser 
right to communicate with potential class members than 
do the Plaintiffs and their counsel.



145

CONCLUSION
For the reasons stated herein, Plaintiffs’ Motion for 

Permission to Communicate with Members of the Pro
posed Class should be denied.

[Signatures Omitted in printing]

[Certificate of Service Omitted in printing]



146

AMENDED COMPLAINT 

[Caption Omitted in Printing]

I.

NATURE OF CLAIM
1. This is a proceeding for declaratory and preliminary 

injunctive relief and for damages to redress the depriva
tion of rights secured to plaintiffs and members of the 
class they represent by Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. §§ 200Ge et seq., and the Civil Rights 
Act of 1866, 42 U.S.C. § 1981.

II.
JURISDICTION

2. Jurisdiction of this Court is invoked pursuant to 
28 U.S.C. §§ 1343 (4), 42 U.S.C. § 2000e-5(f), 2201 
and 2202, this being a suit in equity authorized and in
stituted pursuant to the Civil Rights Act of 1866, 42 
U.S.C. §1981, and 1964, 42 U.S.C. §§ 2000e et seq. 
The jurisdiction of this Court is invoked to secure the 
protection of and to redress deprivation of rights secured 
by (a) 42 U.S.C. §§ 2000e et seq., providing for injunc
tive and other relief against discrimination in employ
ment on the basis of race and (b) 42 U.S.C. § 1981 
providing for the equal rights of all persons in every 
state and territory within the jurisdiction of the United 
States.

III.
CLASS ACTION

3. Plaintiffs bring this action on their own behalf,



and pursuant to Rule 23 (b) (2) of the Federal Rules 
of Civil Procedure as a class action on behalf of those 
similarly situated. The members of the class and/or sub
classes represented by plaintiffs are: (a) all black em
ployees employed by defendant Gulf Oil Company in 
Port Arthur, Texas; (b) all black employees formerly 
employed by Gulf Oil Company in Port Arthur, Texas; 
and (c) ail black applicants for employment at Gulf 
Oil Company who have been rejected for employment 
at said company. The requirements of the Federal Rules 
are met in that:

a. The members of the class are so numerous that 
joinder of all members would be impracticable. 
There are, for example, more than 300 blacks 
employed by Gulf Oil Company in Port Arthur, 
Texas;

b. There are questions of law and fact common to 
the class. It is alleged herein that defendants have 
discriminated against virtually every black em
ployed by Gulf Oil Company in respect to the 
terms and conditions of their employment;

c. The claims of the plaintiffs are typical of the 
claims of the class and/or subclasses;

d. The plaintiffs will fairly and adequately protect 
the interests of the classes and subclasses. The 
interests of the plaintiffs are identical or similar 
to those of the class members;

e. The defendants have acted and refused to act on 
grounds generally applicable to the class and sub
classes, thereby making appropriate final injunctive 
and declaratory relief with respect to all members 
of the classes;

147



148

f. The questions of law and fact common to the 
members of the class and subclasses predominate 
over questions affecting only individual members; a 
class action is superior to other available methods 
for the fair and efficient adjudication of the con
troversy.

IV.
PLAINTIFFS

4. Plaintiff Wesley P. Bernard is a black citizen of 
the United States and Port Arthur, Texas. Plaintiff Ber
nard has been employed at Gulf Oil Company since 
October 2, 1946. He was hired as a laborer and is present
ly a boilermaker, having worked at various “helper” posi
tions during his employment at Gulf Oil Company.

6. Plaintiff Hence Brown, Jr., is a black citizen of 
the United States and Port Arthur, Texas. Plaintiff Brown 
was hired as a laborer in 1954 and presently works as 
a truck driver.

7. Plaintiff Willie Whitley is a black citizen of the 
United States and Port Arthur, Texas. He was hired in 
1946 as a laborer and retired in October, 1975, as a 
utility man, a classification slightly above a laborer 
classification.

8. Plaintiff Rodney Tizeno is a black citizen of the 
United States and Port Arthur, Texas. Plaintiff Tizeno 
was hired originally as a laborer and is presently a crafts
man at Gulf Oil Company.

9. Plaintiff Willie Johnson is a black citizen of the 
United States and Port Arthur, Texas. Plaintiff Johnson 
was hired as a laborer at Gulf Oil Company.



149

V.
DEFENDANTS

10. Defendant Gulf Oil Company in Port Arthur, 
Texas (hereinafter simply Gulf Oil) is a corporation in
corporated and/or doing business in the State of Texas. 
It operates and maintains a manufacturing plant in Port 
Arthur, Texas which produces a variety of oil and pe
troleum products and by-products. Gulf Oil is a cor
poration engaged in interstate commerce, employing more 
than fifteen persons, and is an employer within the mean
ing of 42 U.S.C. §§ 2000e-(b).

11. Defendant Oil, Chemical and Atomic Workers 
International Union, Local Union No. 4-23 and Oil, 
Chemical, and Atomic Workers International Union are 
recognized as the exclusive bargaining representatives of 
operating and maintenance employees for the purpose of 
collective bargaining with respect to rates of pay, wages, 
hours of employment, and other conditions and terms of 
employment. Local Union No. 4-23 and the Oil, Chemi
cal, Atomic Workers International Union are labor or
ganizations within the meaning of 42 U.S.C. § 20Q0e- 
(d), (e).

VI.
STATEMENT OF FACTS

12. Black employees of Gulf Oil are, and have in 
the past, been victims of systematic racial discrimination 
by defendants Gulf Oil and Oil, Chemical and Atomic 
Workers International Union, Local Union No. 4-23. 
Prior and subsequent to July 2, 1965, Gulf Oil engaged 
in policies, practices, customs and usages made unlawful



150

by Title VII of the Civil Rights Act of 1964 (42 U.S.C. 
§§ 2Q00e et seq.) and 42 U.S.C. § 1981 which discrimi
nate or have the effect of discriminating against plaintiffs 
and the classes they represent because of their race and 
color.

13. The methods of discrimination include, but are 
not limited to, intentionally engaging in the following 
practices:

a. Hiring and Assignment: Gulf Oil unlawfully has 
assigned and continues to assign a disproportion
ately large number of black employees to the Com
pany’s lowest paying, least preferred, and more 
physically demanding jobs;

b. White employees are given preference in initial em
ployment and job assignments by Gulf Oil. The 
company utilizes a battery of tests which discrimi
nates or has the effect of discriminating against 
blacks in initial employment with the Company, 
In addition, Gulf Oil maintains a high school di
ploma requirement and, on information and belief, 
other pre-employment criteria which discriminate 
or have the effect of discriminating against black 
applicants. Because of discrimination in hiring and 
job assignment, a disproportionately large number 
of whites have been preferentially hired by Gulf 
Oil for higher paying jobs than blacks with sub
stantially the same or better qualifications. Black 
employees are now, and have in the past, been paid 
less money for harder work under less desirable 
working conditions than their white counterparts;

c. The use of a pre-employment test battery is legally 
deficient in one or more of the following ways:



151

(1) it is not professionally developed; (2) it has 
little or no relationship to successful job perform
ance; (3) it has little or no relationship to the 
job sought or applied for; (4) it exhibits a racial 
and cultural bias against blacks;

d. Defendant Company employs a disproportionately 
small number of blacks in permanent craft posi
tions. Blacks have been historically excluded from 
higher paying craft positions by Gulf Oil;

e. Gulf Oil has failed and/or refused to promote black 
employees and “helpers” to journeymen positions, 
irrespective of their ability to perform the job or 
position sought.

f. As a result of the Company’s racial promotion and 
upgrading practices, “black” lines of progression, 
job classifications and departments have been arti
ficially established and developed with the result 
that blacks have been and are now confined to the 
lower-paying and less-preferred jobs than are their 
white counterparts;

g. Black employees have been denied training, access 
and exposure to craft positions and other instruc
tions which are necessary to an upgrade or promo
tion. Blacks who perform the same or comparable 
work as whites are given unequal pay and compen
sation;

h. Gulf Oil discriminatorily assesses discipline and dis
charge against black employees for reasons which 
would not be grounds for discipline or discharge 
of whites in similar positions.



152

14. Defendant Oil, Chemical and Atomic Workers In
ternational Union, Local Union No. 4-23 has agreed to, 
acquiesced in or otherwise condoned the unlawful em
ployment practices referred to in paragraphs VI (13) 
(a-h), supra.

VII.
EXHAUSTION OF REMEDIES

15. Neither the State of Texas nor the City of Port 
Arthur has a law prohibiting the unlawful practices here
in alleged.

16. All jurisdictional prerequisites to this action have 
been satisfied. This action is timely commenced under 
both 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981.

a. Plaintiff Wesley P. Bernard filed Charge No. AU7- 
6-535 with the Houston Equal Opportunity Com
mission District Office on June 24, 1967. His No
tice of Right to Sue, attached to the Complaint as 
Exhibit A was issued on June 11, 1976.

b. Plaintiff Hence Brown, Jr. filed Charge No. AU7- 
6-540 with the Houston Equal Employment Op
portunity Commission District Office on June 24, 
1967. His Notice of Right To Sue, attached hereto 
as Exhibit B, was issued on June 11, 1976.

VIII.
PRAYER FOR RELIEF

WHEREFORE, plaintiffs and the classes represented 
pray as follows:



153

A. That this Court formally determine, pursuant to 
Rule 23(c) of the Federal Rules of Civil Procedure, 
that this action is maintainable on behalf of the class 
and/or subclasses described in paragraph III (3), supra.

B. That this Court issues affirmative relief as fol
lows:

a. that Gulf Oil be required to institute an active re
cruitment policy;

2. That Gulf Oil be required to canvass the qualifica
tions of all its black employees with the goal to promote 
all such qualified employees and to eliminate all present 
effects of past racial discrimination with the following 
provisions:

a. that plaintiffs and the classes be afforded full utili
zation of company seniority in bidding for or seek
ing better paying and more desirable jobs;

b. restructuring lines of progression, revision of ap
plicable residency requirements, advanced level 
entry, and job skipping at Gulf Oil Company;

c. training and other assistance as necessary to enable 
the plaintiffs and the class to overcome the effects 
of past discrimination;

d. an award of back pay to each plaintiff and class 
member for any financial losses suffered by plain
tiffs and the classes and which are attributable to 
acts of racial discrimination complained of herein;

e. rate protection sufficient to assure that black em
ployees will not be economically discouraged, pre
vented or penalized in their efforts to attain their 
rightful place in Gulf Oil’s employment structure;



154

f. prospective red circling to alleviate the residual ef
fects of any racial discrimination not corrected or 
completely removed by this action;

g. Gulf Oil be required to suspend the use of any and 
all tests or other criteria for promotion or for 
initial employment until said tests or criteria are 
validated in accordance with the Equal Employ
ment Opportunity Commission Guidelines on Test
ing;

h. that the defendant Union, Local 4-23, be required 
to file all grievances of its black members of Gulf 
Oil;

i. enter a declaratory judgment that the acts and prac
tices complained of are in violation of the laws of 
the United States;

j. that plaintiffs and the classes they represent be 
awarded their complete costs of this action, includ
ing a reasonable attorneys’ fees pursuant to 42 
U.S.C. § 2000e-5(k);

k. grant plaintiffs and the classes they represent such 
other and further relief as may be necessary and 
proper.

[Signatures Omitted in Printing]

[Certificate of Service Omitted in Printing]



155

NOTICE OF RIGHT TO SUE WITHIN 90 DAYS 

Exhibit “A”

[Caption Omitted in Printing]

Pursuant to Section 706(f) of Title VII of the Civil 
Rights Act of 1964, as amended, you are hereby notified 
that you may, within ninety (90) days of receipt of this 
communication, institute a civil action in the appropriate 
Federal District Court. If you are unable to retain a 
lawyer, the Federal District Court, in its discretion, may 
appoint a lawyer to represent you and to authorize com
mencement of the suit without payment of fees, costs, or 
security. If you decide to institute suit and find you need 
assistance, you may take this notice, along with any cor
respondence you have received from the Commission, to 
the Clerk of the Federal District Court nearest to the 
place where the alleged discrimination occurred, and re
quest that a Federal District Judge appoint counsel to 
represent you.

HERBERT C. McCLEES, June 11, 1976
District Director Date
Equal Employment Opportunity Commission



156

NOTICE OF RIGHT TO SUE WITHIN 90 DAYS

Exhibit “B”

[Caption Omitted in Printing]

Pursuant to Section 706(f) of Title VII of the Civil 
Rights Act of 1964, as amended, you are hereby notified 
that you may, within ninety (90) days of receipt of this 
communication, institute a civil action in the appropriate 
Federal District Court. If you are unable to retain a 
lawyer, the Federal District Court, in its discretion, may 
appoint a lawyer to represent you and to authorize com
mencement of the suit without payment of fees, costs, or 
security. If you decide to institute suit and find you need 
assistance, you may take this notice, along with any cor
respondence you have received from the Commission, to 
the Clerk of the Federal District Court nearest to the 
place where the alleged discrimination occurred, and re
quest that a Federal District Judge appoint counsel to 
represent you.

HERBERT C. McCLEES, June 11, 1976
District Director Date
Equal Employment Opportunity Commission



157

ORDER

[Caption Omitted in Printing]

Filed August 10, 1976

Having considered Plaintiffs’ Motion for Permission to 
Communicate with the Proposed Class:

IT IS ORDERED that the Motion is hereby denied.

JOE J. FISHER 
United States District Judge



158

REPORT TO THE COURT BY GULF OIL 
CORPORATION OF INDIVIDUALS WHO HAVE 

ACCEPTED BENEFITS UNDER THE 
CONCILIATION AGREEMENT

[Caption Omitted in Printing]

Filed September 2, 1976

Pursuant to paragraph (9) of the Court’s Order dated 
June 22, 1976, Gulf Oil Corporation, hereinafter referred 
to as “Gulf”, hereby makes this report to inform the 
Court of the names of potential or actual class members 
who have accepted the offer of back pay and signed re
ceipts and releases pursuant to the Conciliation Agree
ment and the names of those who hve refused or failed to 
respond. The Conciliation Agreement referred to is that 
entered into on April 14, 1976, between the Equal Em
ployment Opportunity Commission, the Office for Equal 
Opportunity and Gulf.

In accordance with paragraph (4) of the Court’s Order 
dated June 22, 1976, Gulf delivered a notice to the Clerk 
of Court for mailing to all employees of Gulf at its Port 
Arthur Refinery who were covered by the Conciliation 
Agreement and who had not signed receipts and releases 
for back pay awards thereunder informing them that they 
had 45 days from the date of the Clerk’s notice to accept 
the offer as provided for by the Conciliation Agreement 
or such offer will expire until further order of the Court. 
The notice from the Clerk of Court was dated June 30, 
1976, and was mailed to all individuals entitled to benefits 
under the Conciliation Agreement who had not previously



159

signed receipts and releases. The notice was not sent to 
female employees or heirs of deceased employees who 
were entitled to benefits under the Conciliation Agree
ment because they were not actual or potential members 
of the proposed class as defined by the Complaint in this 
suit.

Attached hereto as Exhibit A is a list of individuals 
who have accepted the benefits of the Conciliation Agree
ment by signing receipts and releases indicating their ac
ceptance.

Attached hereto as Exhibit B is a list of individuals who 
are entitled to benefits under the Conciliation Agreement 
and who have failed to accept those benefits by signing 
receipts and releases.

[Signatures Omitted in Printing]

[Certificate of Service Omitted in Printing]



160

EXHIBIT A

Employees’ Names

1. Herman M. Alexander
2. Willie Brent
3. Raymond J. Fisk
4. Joe A. Hill
5. Isaac Linden, Jr.
6. Joseph E. Londow
7. Robert Londow
8. Chester A. Vital
9. Earl L. Williams

10. Elcide Davis
11. Clarence Adams
12. Silas Addison
13. Donald Albert
14. Joseph Alexander, Jr.
15. Ivory J. Alexis
16. Abraham Allen
17. Vincent J. Allen
18. John N. Alpough
19. Thaddeus Alpough
20. Theoudile Alpough
21. John Amy
22. Henry Andrepont
23. Francis Andrus
24. Clayton Antoine
25. Dalton Antoine
26. Kermit W. Baker
27. Reginald H. Baker
28. John C. Batiste
29. John Beard

30. L. P. Beckett
31. Clarence Bell
32. Willis Boatman
33. Joseph Bobb, Jr.
34. Oscar W.

Boudreaux, Jr.
35. James A. Bowden
36. Harry C. Bradley
37. Herman Bray
38. Manuel Breaux
39. Orren Brew
40. Abraham Briscoe, Jr.
41. Jesse J. Brooks
42. Hence H. Brown
43. James C. Bryant
44. Thomas R. Bryant
45. Irvin Buckner
46. Bernard Bush
47. Gilbert Cannon
48. Edgar Chambers
49. Junius Chaney
50. Arthur Charles, Jr.
51. Henen Charles
52. Louis Chillow, Jr.
53. Eddie Christentary
54. James Clark
55. Cornelius Collins
56. Earnest Collins
57. James Collins



161

58. Launy Collins
59. Rodney Collins
60. Joshua Comeaux
61. John Conner
62. Leroy Conner
63. Henry Cosey
64. Jessie Davis
65. Junius M. Day
66. Morris D. Deese
67. James Diggles
68. Lloyd Dixon
69. Vivian Dumas
70. Johnnie Dunn
71. Oscar M. Dwin
72. Ervin Edwards
73. Robert Edwards
74. Willie Edwards, Jr.
75. Lee V. Eli
76. John Ellas, Jr.
77. Louis Esbry, Jr.
78. Lonnie Eulian
79. Amos J. Evans
80. Tony Evans
81. Theado Felder
82. Fred B. Field
83. Shelton Fontenot
84. Herbert J. Fontnette
85. Ed Foreman
86. Jesse C. Foreman
87. Percy Forward
88. Lyles J. Francis
89. Raymond Freddye
90. Philip Frelot

91. Manuel Gasper
92. Irving Gerard
93. Wilbert Getwood
94. Abraham L. Gilbert
95. Curtis L. Gill
96. Lee A. Giron, Jr.
97. Clifton Glasper
98. Willie Glover
99. Paul Goings, Jr.

100. James W. Gordon
101. Ray Gordon
102. Ruby Gordon
103. Rufus Granger
104. Leroy Grant
105. Thomas J. Green
106. Lawrence L. Gregoire
107. Allen Griffin, Jr.
108. Johnny Guice
109. Jean D. Guidry
110. Isaac Gunner
111. Lionel Gunner
112. Edward Hall
113. James Hammond
114. Amos Harris
115. Anderson Harrison
116. Alfred T. Hawkins, Jr.
117. Henry Haynes
118. Samuel Heath
119. Lloyd J. Hebert
120. Berkley A. Henderson
121. Lenton B. Henderson
122. Waldore W. Henderson
123. John C. Hennington



162

124. Harrison Hill
125. F. E. Hollins
126. Alex Hubbard
127. Willie Hughes
128. Joseph Huston
129. Welby Ina
130. Carey Ivory
131. Lawrence Jackson
132. Ernest Jacobs
133. Furbin M. Jacobs
134. Phillip L. Jacquet
135. Joseph H. Jefferson
136. Leroy Jenkins
137. Alfred Joe, Jr.
138. Cleveland Johnson
139. Mitchell Johnson
140. Odell Johnson
141. Thomas Johnson, Jr.
142. William Johnson
143. McZeal Joiner
144. Hardiness Jones
145. Lee T. Jones
146. Willie Jones
147. Eddie Joseph, Jr.
148. Warren Joseph
149. Wilford Julien
150. James Keller
151. James Keller
152. Lawrence LaFleur
153. Joseph O. Landry
154. Sterling Landry
155. Johnnie Langford
156. Robert L. Lavergne

157. Milton Lavine
158. Arthur Lawrence
159. Shelby Lee
160. Clarence Lendon
161. Joseph L. Lewis
162. Eddell Lightfoot
163. Earl Linton
164. Norris Louviere
165. Thomas D. Luse
166. Louis J. Lyons
167. Willard Lyons
168. Eugene Maden
169. Howard Mader
170. Damon Magadeny
171. Frederick W. Malbrue
172. Warren Marks
173. Joseph W. Marsh
174. Morris Martin
175. Edmond Matthews
176. John McClenon
177. Robert McCree, Jr.
178. Herbert A. Mearlon
179. Allen Miles
180. Thomas Miles
181. Isaac Miller
182. Lemon Miller
18 3. Jasharia Minard
184. Willington Mingo
185. Arnesta A. Mitchell
186. Joseph J. Mitchell
187. Lumos K. Mitchell
188. Eddie C. Monroe, Jr.
189. Robert L. Mosley



163

190. Clarence Moss
191. Earnest M. Newman
192. Elton Nickles
193. Clifton Nurse
194. Leo Oderbert
195. Delard Parker
196. Henry Parker
197. Willie Parker
198. Hamilton Paul
199. James R. Paul
200. Landry Pete
201. Wilson Phillips
202. Murphy J. Pickney
203. Oliver Plumbar
204. Royal Posey
205. Isaac Prejean
206. Sidney Prevost
207. Lawrence Prince
208. Wallace Ransom
209. Norman Ratcliff
210. Wilson Ratcliff
211. Adam Reado
212. Arthur Reado
213. Charlie Reynolds
214. Henry Robertson
215. Arthur Robinson
216. Charlie Robinson
217. Jessie Rogers
218. Leroy Ross, Jr.
219. Wm. T. Sanderson, Jr.
220. Lester Seales
221. Lawrence Sharffet
222. Murray Shedrick

223. George Shields, Jr.
224. Warren Simmons
225. Elster Simon
226. Lee Simon
227. Roosevelt Simon
228. Clifton Sinegal
229. Cleveland Sinegal
230. Frank Smith
231. Henry Smith
232. Lloyd Smith
233. Wilbur Smith
234. Oguster Snowden
235. Leonard Sostand
236. Hillery Starks, Jr.
237. Joseph A. Stelley
238. Ransom S. Strawder
239. Cornelius N. Taylor
240. Israel Taylor
241. Joseph Theall
242. John B. Thibodeaux
243. Alphonse Thomas
244. Levy Thomas
245. Landry Thomas
246. Roland Thomas
247. Joseph R. Thompson
248. Fred Trice
249. Herman Turner
250. Sterling Turner, Jr.
251. William Vaughn
252. Freddie Veltz
253. James Walker
254. James Wallace
255. Louis J. Warrick



164

256. David Washington, Jr.
257. Jimmie Washington
258. James C. Washington
259. Paul C. Washington
260. James D. Watts
261. Fred Welch
262. James W. West, Jr.
263. Chester Whitley
264. Chrystal Wide
265. Clarence A. Williams
266. Calvin H. Williams
267. Ervin Williams, Jr.
268. George Williams, Jr.
269. Henry Williams
270. Lawrence C. Williams
271. L. V. Williams
272. Robert Williams
273. Walter Williams, Jr.
274. Columbus Wilson
275. Lester Wycoff
276. Jeff Alfred
277. Joe M. Allen
278. Burvin Anderson
279. Herman Anderson
280. James Bailey, Jr.
281. Sam Baker
282. Walter Ballard
283. Roosevelt Batiste
284. Otis J. Beasley
285. Upshy Bell
286. Henry Bessard
287. Sherman Beverly
288. Joe Bob

289. Ken R. Bonnie
290. Parker Botley
291. Frank I. Boutte
292. Clarence Bridges
293. Vinson Briscoe
294. Clarence Broussard
295. Paul D. Broussard
296. Herman Brown
297. Willie Bryant
298. Wilton Bryant
299. Burnell Buchanan
300. Rawlin G. Bush
301. Willie D. Bush
302. Willie Campbell
303. Freddie Carter
304. Fred D. Carter
305. Willie Charles
306. Joseph L. Clark
307. Lawrence Clayton
308. Frank H. Coleman
309. Van Coleman
310. Irvin Collins
311. Milton Collins, Jr.
312. Willie R. Collins
313. Ellis Comeaux
314. Freddie Comeaux
315. Leander Como
316. Clarence Conner
317. Gussie Cooks
318. Willie Cross
319. Isiah Daniel
320. Sampson Daniel
321. Hillard David



165

322. Cleveland Demartha
323. George Douglas
324. Willie Douglas
325. Louis Dugas
326. Clovis Duhon
327. Paul Duhon
328. Charlie Dupree
329. Ernest H. Edwards
330. Price Edwards
331. Lester Elmore
332. Wilbur T. Eugene
333. Frank Fennis
334. Allen Filer
335. Bennie Francis
336. Junius J. Francis
337. Morris Francis
338. Roy Francis
339. Wilford Francis
340. Germain Francois
341. Antewine Franklin
342. Norman Frelow
343. Lee A. Giron
344. Mose Gistand
345. Willie Gloston
346. William Gobart
347. Timothy Jones
348. Talmage Jones
349. Roy Joseph
350. Lawrence Keal
351. Ora L. Landry
352. Joseph F. Langlinais
353. Charley Lee, Jr.
354. Robert Lee

355. Albert Lewis
356. John Lewis
357. James Lewis
358. Joseph Lewis
359. Paul Lewis
360. Domingue Londow
361. Albert Malvaux
362. Willie Marks
363. Dock Martin
364. Mose Martin
365. Ervin McGee
366. Ernest M. Miller
367. Frank Mills
368. James F. Moore
369. Curtis Morris
370. Lloyd Gordon
371. Rayfield Gordon
372. Lee Gradney
373. Adam Granger, Jr.
374. Nathan Granger
375. David Green
376. Morris Guidry
377. Whitney Guidry
378. Willie Hall
379. George Hardeman
380. Washington N.

Harrison
381. Lemon Harmon
382. Ormes Heath
383. Albera Henry
384. Joseph Hill
385. Leroy Horton
386. Albert Jacko



166

387. Rufus Jenefor
388. Glancy Johnson
389. Stanford Johnson
390. Wesley Johnson
391. Willie Johnson
392. Zedekiah Johnson
393. Albert Jones
394. Claude Jones
395. Sylvester Jones
396. Burges Morrow 
397 Dempsey Morrow
398. Moses Mouton
399. Robert B. Mouton
400. Henry Nezy
401. George Ogletree
402. Charles Olivier
403. Eddie Pierre
404. Hannable Pierre
405. Jean Pierre
406. Calvan Polite
407. Leo Randall
408. Homer Richard, Jr.
409. Martin Richard
410. Prevol Rideau
411. Granville Robinson
412. Joe Rogers
413. Harry Ruffin
414. Preston Sampson
415. Paul Scipion
416. C. Arch Seale
417. Leo Segura
418. Charlie Shaw
419. Isaac Shedrick

450. Isaiah Washington
421. Stanley Sias
422. Aaron Simmons
423. Leon Simon
424. Bob Simpson
425. Prejean Sinegal
426. June Smith
427. Bumis Solomon
428. Fred Stephenson
429. Effery A. Syers
430. John Syers
431. Preston Syers
432. Lee Thomas
433. Arthur Thompson
434. James T. Thornton
435. James Towers
436. Renard Trahan
437. O. D. Trainer
438. Aron Van Wright
439. Hamilton Viltz
440. Murphy N. Vital
441. Philmore Vorise
442. Joseph D. Wagner
443. Harold Walker
444. Sherman Walker
445. Ralph F. Walters
446. Steven Walters
447. Frank Ward
448. Burnes Washington
449. Dennis Washington
450. Isaih Washington
451. Willie Washington
452. Marcus J. B. Watkins



167

553. Overton West
554. Emery White
555. Sidney White
556. Cravin Williams
557. Clifton Williams
558. Lawrence Williams
559. Oran Williams
560. Tom Williams

561. Curtis R. Wilson
562. O. B. Windon
563. David Worthy
564. Raymond J. Rose
565. Jessie R. Sparks
566. Theodore R.

Sanderson*

* The release was received on 8/25/76, 12:47 p.m., but it was 
not processed because of the Court’s Order.



168

EXHIBIT B
Employees’ Names

1. Joseph Starring
2. Russel Abbs
3. Howard Adams
4. Edward Benjamin, Jr.
5. Irvin Bob
6. Vernon D. Booker
7. Glen Branch
8. Cuthers Broaden
9. Hamilton Carmouche

10. Lawrence Carriere
11. Herman Carter
12. Joseph Castille
13. Anthony Clark
14. Daniel Clark
15. Willie Conway
16. Squire Crawford
17. John Francis
18. Isaiah Frank
19. Raymond J. Gilbert
20. Robert Gordon
21. Acy Graham
22. Haywood Green
23. Clyde Harrington
24. Thomas J. Harris
25. Fred H. Hudson
26. Illinois W. Johnson
27. Fred Jones
28. Frank Jones
29. Leroy Jones
30. Willie Jones, Jr.

31. Clarence Kennerson
32. David A. McKenzie
33. Lee Medford
34. George Melancon
35. James R. Newman, Jr.
36. Carley Sam
37. William Santee
38. Joseph W. Saulsberry
39. Willie L. Scott
40. Ollie J. Smith
41. Albert Sweet
42. Herman Walker
43. Freddie White
44. Alphe Williams, Jr.
45. Dennis Williams
46. Earl Williams
47. Howard Martin
48. Ora Queen
49. Anton Amy
50. Leroy Bell
51. John B. Burrell
52. Willie Johnson
53. Earl Nelson
54. Joseph Parker, Jr.
55. Rodnel Senegal
56. Arthur Skillman
57. Willis Smith
5 8. Wesley Vories
59. Frank Webb
60. Spencer Abron, Jr.



169

61. Wesley P. Bernard
62. Hence Brown, Jr.
63. John Duhon
64. Thomas Flanagan, Jr.

65. Joseph P. Jacquet
66. Elton Hayes
67. Rodney Tizeno
68. Willie Whitley



170

ORDER

[Caption Omitted in Printing]

[Filed January 11, 1977]

BE IT REMEMBERED that on this day came on for 
consideration the Motion to Dismiss of defendant Gulf 
Oil Company [Gulf], joined in by the defendant Oil, 
Chemical and Atomic Workers International Union and 
Local Union No. 4-23 [Unions]. After proper notice to 
the parties by an Order of this Court, the Motion to Dis
miss is to be treated under Rule 56, F.R.Civ.P., because 
the defendants offered, and the Court accepted evidence 
extrinsic to the pleadings in the form of affadavits. The 
parties were allowed more than 10 days to submit any 
additional pertinent information. Taking into considera
tion all material presented by the parties prior and subse
quent to the decision to treat the Motion as one for sum
mary judgment, the Court must conclude that the Mo
tion is well taken and should be granted in all particulars.

While it is not necesary that all members of a class 
bring a charge with the Equal Employment Opportunity 
Commission [EEOC] as a prerequisite to joining as co
plaintiff in litigation, Oatis v. Crown Zellerbach Corp., 
398 F.2d 496 (5th Cir. 1968), the class representatives 
must show that they have complied with the required 
preliminary administrative steps and timely filed suit in 
this Court. Macklin v. Spector Freight Systems, Inc., 
478 F,2d 979 (D.C. Cir. 1973). At this stage in the 
history of Title VII litigation, it goes without saying that 
a plaintiff who seeks to represent a class may not bring



suit in District Court until he has filed a complaint with 
the EEOC. 42 U.S.C. § 2000e-5(f) (1974).

The affidavits submitted reveal that neither of the 
plaintiffs Elton Hayes, Sr., nor Rodney Tizeno has filed 
a complaint with the EEOC with regard to a discrimina
tion charge against Gulf or the Unions. Thus neither 
Hayes nor Tizeno may maintain suit in their own right, 
Love v. Pulman Co., 404 U.S. 522 (1972); East v. 
Romine, Inc., 518 F.2d 332 (5th Cir. 1975), and there
fore could not adequately represent a class. Rule 23(a), 
F.R.Civ.P.

Of course this failing should not prevent maintenance 
of the Title VII portion of this suit as a class action if 
others of the named plaintiffs have satisfied the jurisdic
tional requirements and could raise a viable claim here. 
Unfortunately this is not the case.

Title VII requires that suit be instituted in the Dis
trict Court within 90 days after notice from the EEOC 
that

171

* * * the Commission has not filed a civil action 
under this section * * * or the Commission has not 
entered into a conciliation agreement to which the 
person aggrieved is a party, (emphasis supplied). 
42 U.S.C. § 2000e-5(f) (1).

Plaintiffs Willie Johnson, Sr., Wesley Bernard, and Hence 
Brown received such notice from the EEOC on February 
26, 1975, after it was sent the previous day. Plaintiff 
Willie Whitley’s failure of conciliation letter was sent 
December 4, 1973. The mailing of these letters began 
the running of the 90 day period for filing a civil action



172

on the associated claim, under the clear language of the 
statute set out above.

Unfortunately the EEOC had adopted a troublesome 
two letter procedure whereby after sending the failure of 
conciliation notice, it would later issue a “right to sue” 
letter at the complainant’s request. The first letter, how
ever, advised the claimant that he should contact an at
torney or request assistance from the EEOC in doing so 
prior to the issuance of the “right to sue” letter and pre
pare for suit if desired. The two letter system was entirely 
a figment of the imagination of the EEOC, since it is not 
mandated or suggested by 42 U.S.C. §2000e-5(f). As 
is ably pointed out by Gulf in its brief, the events which 
trigger notice are listed in the disjunctive so that the oc
currence of any one of the listed events (such as failure 
of conciliation) and subsequent notice thereof empowers 
the claimant with the right to bring action in this Court. 
To hold that the 90 day period did not begin to run 
until after the claimant requests and receives the second 
letter would amount to allowing him unlimited discretion 
in choosing a time for filing suit.

The leading decision to the contrary, Tuft v. McDon
nell Douglas Corporation, 517 F.2d 1301 (8th Cir.
1975), has not been followed in this Circuit. See Turner 
v. Texas Instruments, Inc., 401 F.Supp. 1179 (N.D. 
Texas 1975); Kelley v. Southern Products, Civ. No. 
19243 (N.D. Georgia 1975); Barfield v. A.R.C. Security, 
Inc., 9 E.P.D. 10,136 (N.D. Georgia 1975). Judge 
Porter’s decision in Turner v. Texas Instruments, Inc., 
supra, is most persuasive in its examination of 42 U.S.C. 
§ 2000e-5(f), its legislative intent, and cases decided 
thereunder. His analysis of the erroneous rationale em



173

ployed in cases supporting the two letter system, and the 
fact that jurisdiction must be construed strictly, Genovese 
v. Shell Oil Co., 488 F.2d 84 (5th Cir. 1973), con
vinces this Court that the 90 day period for filing suit 
begins when the notice of failure of conciliation is sent 
by the EEOC.

Since this cause was not filed until May 18, 1976, more 
than 90 days had elapsed from the sending of the failure 
of conciliation notice by the EEOC. The Title VII claim 
must be dismised.

Plaintiffs’ secondly assert a cause of action under 42 
U.S.C. §1981. Since the claim was the subject of com
plaints filed with the EEOC in 1967 by three of the plain
tiffs, nine years had elapsed before court action on it was 
initiated. Since the plaintiffs allowed more than two 
years to run before fifing suit, and because the fifing of 
an EEOC complaint does not toll the limitation period, 
Johnson v. Railway Express Agency, 421 U.S. 454 
(1975), any cause of action under § 1981 is barred and 
must be dismised. Tex. Rev. Civ. Stat. Ann. art. 5526(4). 
Defendants’ reasoning is convincing that all plaintiffs 
complain of the identical pattern of discrimination which 
was the subject of the Bernard, Brown and Johnson 
EEOC complaint, which pattern has long since been elim
inated. Thus, any claim by Tizeno, Hayes and Whitley 
must be dismissed along with that of Bernard, Brown and 
Johnson. The Court additionally finds no circumstances 
of continuous discrimination that would justify applica
tion of the principles discussed in Williams v. Norfolk & 
Western Railroad Co., 530 F.2d 539, 542 4th Cir. 
1975); Johnson v. Railway Express Agency, supra at



174

467 n. 13; and Briggs v. Brown & Williamson Tobacco 
Co., 414 F. Supp. 371, 378 (E.D. Va. 1976).

The Court also acknowledges a most compelling argu
ment for the application of the equitable doctrine of 
laches in this particular case, based not only on the ob
vious lack of diligence on the part of the plaintiffs, but a 
recognition that to put this defendant to the task of ob
taining records and locating witnesses after the expiration 
of such a lengthy period would pose a particularly onerous 
burden. Afro-American Patrolmens League v. Duck, 503 
F.2d 294, 299 (6th Cir. 1974). In this regard see the 
affidavit of C. B. Draper, made a part of the record on 
October 15, 1976. It is accordingly

ORDERED, ADJUDGED and DECREED that sum
mary judgment be and the same is hereby granted for 
the defendants in this cause, as to both the class action 
and any individual claims of discrimination by the plain
tiffs.

RENDERED this the 11th day of January, 1977.

/ s /  JOE J. FISHER 
Joe J. Fisher
U. S. Chief District Judge



175

Wesley P. BERNARD et al., 
Plaintiffs-Appellants,

v.
GULF OIL COMPANY et al,

Defendants-Appellees.

No. 77-1502.

United States Court of Appeals,
Fifth Circuit.

June 15, 1979.

Employment discrimination suit was brought against 
employer and unions based on allegation that the em
ployer and the unions had discriminated against plaintiffs 
and similarly situated black employees in violation of 
Title YII and of the Civil Rights Act of 1866. The United 
States District Court for the Eastern District of Texas, 
Joe J. Fisher, Chief Judge, entered an order prohibiting 
the parties from communicating with class members with
out court approval and later granted defendants’ motions 
for summary judgment. Plaintiffs appealed, and the Court 
of Appeals, Thomberry, Circuit Judge, held that: (1) 
the 90-day period within which plaintiffs were required 
to file suit did not begin to run until plaintiffs received 
notice from the Equal Employment Opportunity Commis
sion both of the failure of conciliation and of the EEOC’s 
decision not to sue; (2) defendants did not meet their 
summary judgment burden to establish the absence of any 
material issue of fact; (3) under both Texas and federal 
law, the date on which the statute of limitations began to 
run on plaintiffs’ claim under the Civil Rights Act of



176

1866 was the last date on which defendants unlawfully 
harmed plaintiffs; (4) plaintiffs could recover damages 
for any wrongful acts committed during the limitations 
period; (5) the statute of limitations did not totally bar 
the claim under the Civil Rights Act of 1866; (6) any 
recovery under the Civil Rights Act of 1866 was limited 
to those violations occurring within a two-year period 
immediately preceding the filing of the complaint or there
after; (7) plaintiffs’ failure to file their Title VII claim 
until completion of the EEOC process was not inexcus
able delay and did not support the application of laches 
to bar the claim; (8) the order restricting the parties’ 
communication with members of the putative class was a 
permissible exercise of the district court’s discretionary 
power to control a class action, and (9) the order did not 
violate plaintiffs’ constitutional rights.

Reversed and remanded.

Godbold, Circuit Judge, concurred in part and dis
sented in part and filed opinion.

James C. Hill, Circuit Judge, specially concurred and 
filed opinion.

Stella M. Morrison, Port Arthur, Tex., Ulysses Gene 
Thibodeaux, Lake Charles, La., Charles E. Cotton, New 
Orleans, La., Barry L. Goldstein, Washington, D.C., Jack 
Greenberg, Patrick O. Patterson, New York City, for 
plain tiffs-appellants.

William H. Ng, Atty., Abner W. Sibal, Gen. Counsel, 
Joseph T. Eddins, Jr., Assoc. Gen. Counsel, Charles L. 
Reischel, Asst. Gen. Counsel, Equal Employment Oppor



177

tunity Commission, Washington, D. C., for E.E.O.C., 
amicus curiae.

Joseph H. Sperry, Wm. G. Duck, Kathleen M. Civins, 
Susan R. Sewell, U. S. Jones, Houston, Tex., for Gulf Oil.

Carl A. Parker, Michael D. Murphy, Port Arthur, Tex., 
for Oil, Chemical & Atomic Workers, Etc.

Appeal from the United States District Court for the 
Eastern District of Texas.

Before THORNBERRY, GODBOLD and HILL, Cir
cuit Judges.

THORNBERRY, Circuit Judge:
Plaintiffs-appellants in this case are present or retired 

employees of defendant Gulf and claim that Gulf and the 
defendant unions have discriminated against plaintiffs and 
similarly situated black employees in violation of Title 
VII of the Civil Rights Act of 1964, 42 U.S.C. § 20Q0e 
et seq., and the Civil Rights Act of 1866, 42 U.S.C. 
§ 1981. The district court entered an order prohibiting 
the parties from communicating with class members and 
later granted defendants’ motions for summary judgment.

Plaintiffs Bernard, Brown, and Johnson filed charges 
of discrimination with the EEOC in 1967 against Gulf 
and the local union.1 The EEOC served copies of the

1. Bernard also filed charges against the international union in 
1976, but the EEOC dismissed this charge as untimely. Apparently, 
this was the only charge any of the plaintiffs filed against the inter
national union. Although these facts may have some relevance to 
the merits of the action or scope of relief against the international 
union, the parties did not discuss that possibility before this court. 
Therefore, although the district court may decide differently after 
further examination on remand, on this appeal we will discuss the 
issues raised as if they were equally applicable to all defendants.



178

charge on defendants in August, 1967, and issued a find
ing of reasonable cause in August, 1968. The EEOC 
actively pursued conciliation efforts with defendants until 
February, 1975, at which time it sent plaintiffs a notice 
stating that defendants did not wish to entertain concilia
tion discussions and advising plaintiffs that they could 
request a “Notice of Right to Sue” letter at any time.2 
The EEOC continued conciliation efforts on the basis of a 
Commissioner’s charge filed in September 1967, which 
raised the same issues charged by plaintiffs. These efforts 
resulted in a conciliation agreement between the EEOC 
and Gulf in April, 1976. Plaintiffs filed this suit in May, 
1976, and requested the Right-to-Sue letters from the 
EEOC. The EEOC issued the letters to Bernard and 
Brown in June,3 and plaintiffs amended their complaint to 
reflect this fact in July, 1976.

2. These first letters stated:
On February 19, 1975, the Equal Employment Opportunity 
Commission’s Houston District Office received notice from Gulf 
Oil Company—U.S. and Oil, Chemical and Atomic Workers, 
International Union Local 4-23, the Respondents in the above 
captioned matter, that they do not wish to entertain conciliation 
discussions to resolve those issues set out under the Commis
sion’s Decision as issued on August 15, 1968. You are hereby 
notified that you may request a “Notice of Right to Sue” from 
this office at any time. If you so request, the notice will be 
issued, and you will have ninety (90) days from the date of its 
receipt to file suit in Federal District Court.
It is advisable that, if you wish to pursue this matter further, 
you have an attorney ready to proceed with the case prior to 
issuance of the Notice of Right to Sue. If you do not have an 
attorney and you wish to proceed in Federal District Court 
with your case, then call this office for assistance in securing 
private legal counsel.

3. The Right-to-Sue letters stated:
NOTICE OF RIGHT TO SUB 

WITHIN 9 0  DAYS
Pursuant to Section 706(f) of Title VII of the Civil Rights Act 
of 1964, as amended, you are hereby notified that you may,



179

Soon after they filed the complaint, plaintiffs’ attorneys 
appeared at a meeting of Gulf employees, during which 
they discussed this case. As a result of this meeting, Gulf 
requested the court to enter an order restricting the par
ties’ or counsels’ communication with class members. Gulf 
accompanied this request with an unsworn assertion that 
plaintiffs’ attorneys had told the employees at the meeting 
it would be against their interest to accept the back pay 
award offered pursuant to the conciliation agreement. 
Plaintiffs’ attorneys adamantly denied that they had urged 
the employees to reject the conciliation agreement. The 
court granted Gulf’s motion without making any findings.4 
Defendants then moved to dismiss the complaint. In 
November, 1976, the court ordered that the motion be 
treated as a motion for summary judgment, and granted 
summary judgment for defendants in January, 1977. 
Plaintiffs raise four issues on this appeal.

I.
[1] The district judge dismissed plaintiffs’ Title VII 

claim because plaintiffs failed to file suit within 90 days of 
receiving the first letter, which stated that conciliation 
efforts had failed and that plaintiffs could request a

within ninety (90) days of receipt of this communication, in
stitute a civil action in the appropriate Federal District Court. 
If you are unable to retain a lawyer, the Federal District Court, 
in its discretion, may appoint a lawyer to represent you and to 
authorize commencement of the suit without payment of fees, 
costs, or security. If you decide to institute suit and find you 
need assistance, you may take this notice, along with any cor
respondence you have received from the Commission, to the 
Clerk of the Federal District Court nearest to the place where 
the alleged discrimination occurred, and request that a Federal 
District Judge appoint counsel to represent you.

4. This order is set out in footnote 9, infra.



180

Notice-of-Right-to-Sue letter. The judge held “that the 90 
day period for filing suit begins when the notice of failure 
of conciliation is sent by the EEOC.” Since the trial court 
opinion in this case, however, this court has held differ
ently. In Zambuto v. American Tel. & Tel. Co., 544 F.2d 
1333 (5 Cir. 1977), a panel of this circuit noted that the 
statute imposing the 90 day limitation could be read to 
begin the 90 day period on receipt of a notice that the 
EEOC has either failed to file a civil action or has not 
arrived at a conciliation agreement. That court stated, 
however, that the limitations period does not begin to run 
until the EEOC has notified the claimant “of both the 
failure of conciliation and the EEOC’s decision not to sue 
in order to indicate clearly that the administrative process 
has been completed.” Id. at 1335. Accord Turner v. Texas 
Instruments, Inc., 556 F.2d 1349 (5 Cir. 1977); Page v. 
U.S. Indus, Inc., 556 F.2d 346 (5 Cir. 1977), cert, 
denied., 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 
(1978). Furthermore, the Zambuto panel held that the 
final paragraph of the initial letter infomed Mrs. Zambuto 
that “the EEOC was awaiting [her] request for issuance 
of a right-to-sue letter. Implicit in this latter statement is 
the assurance that the 90 day period would not commence 
until this letter was requested and dispatched. Because 
this paragraph declared that further administrative action 
was contemplated by EEOC, it failed to furnish Mrs. 
Zambuto (or AT&T) with the form of notice required under 
§ 2000e-5(f) (1) to start the 90 day period for filing suit.” 
544 F.2d at 1335. Because the two-letter procedure 
allowed the claimant to postpone filing suit, the Zambuto 
panel declared the procedure invalid. Because the use and 
wording of the two letters was “patently misleading,” 
however, that panel made its ruling prospective only.



181

[2] At oral argument, defendants conceded that the 
present case is directly controlled by Zambuto and the 
cases following it. Plaintiffs filed suit before the Zambuto 
decision, and the letters plaintiffs received are indistin
guishable from those involved in Zambuto, Page and 
Turner. As in Turner and Page, the first letter plaintiffs 
received informed them only that conciliation efforts had 
failed; it did not indicate that the EEOC had decided not 
to sue. Also, as in Page and Zambuto, the concluding 
paragraph of the first letter assured plaintiffs that the 90 
day period would not commence until plaintiffs received 
the second letter. Because the letters to the plaintiffs in 
this case were as “patently misleading” as those in prior 
cases, the 90 day period for filing suit did not begin until 
receipt of the second letter. Plaintiffs filed suit within this 
period. Therefore, the district court erred in dismissing 
the individual Title VII claims of Bernard and Brown. 
Also, because the claims of these class representatives are 
properly before the court, the district court erred in dis
missing the class claims and the claims of the other named 
plaintiffs who did not file a complaint with the EEOC. 
Wheeler v. American Home Prod., 563 F.2d 1233 (5 Cir. 
1977); Oatis v. Crown Zellerbach Corp., 398 F.2d 496 
(5 Cir. 1968).

II.
The district judge also granted summary judgment in 

favor of defendants on plaintiffs’ § 1981 claim. The trial 
judge found that plaintiffs’ complaint alleged only “the 
identical pattern of discrimination which was the subject 
of the Bernard, Brown and Johnson EEOC complaint, 
which pattern has long since been eliminated.” In addi
tion, the court found as a fact that there were no continu
ing acts of discrimination.



182

[3-5] Defendants make two arguments in support of 
this holding. First they assert that the trial court properly 
granted summary judgment in their favor because plain
tiffs failed to respond properly to defendants’ summary 
judgment motion Plaintiffs assert that defendants have dis
criminated in the past and presently continue to discrimin
ate against blacks in hiring, assignment, promotion, train
ing, recruiting, discipline, and discharge. Defendants ar
gue that “appellants wholly failed to offer factual support 
for their assertions.” Defendants-appellees brief at 18. 
Defendants misunderstand the summary judgment prac
tice. Under Fed.R.Civ.P. 56, the moving party has the 
initial burden of proving that there is no genuine issue of 
material fact. If the movant wishes to dispute the allega
tions of the complaint, he must do so through affidavits, 
documents, or other evidence. Unless and until the mov
ant initially provides factual support for the summary 
judgment motion, the opposing party has no duty to res
pond to the motion or to present opposing evidence. Boaz- 
man v. Economics Lab., Inc., 537 F.2d 210 (5 Cir.
1976). In the present case, defendants presented a great 
number of affidavits with their summary judgment motion, 
but in none of the affidavits did defendants deny that they 
are discriminating against blacks. Therefore, the trial 
judge’s ruling that there were no instances of continuing 
discrimination was unsupported by the summary judg
ment record. Defendants, as the parties requesting sum
mary judgment, failed to meet their burden of showing 
the absence of any material issue of fact.

[6-8] Defendants also argue that even if the facts plain
tiffs allege are true, we must dismiss plaintiffs’ § 1981 
claim. In support of this contention, defendants argue pri
marily that the applicable statute of limitations is that



183

provided by Tex. Rev. Civ. Stat. Ann. art. 5526, John
son v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 
1379 (5 Cir. 1974), and that under Texas law, the 
statute of limitations begins to run when the elements 
necessary for the cause of action first coalesce, regardless 
of whether defendants later commit other acts of the same 
nature. Under defendants’ theory, the statute of limita
tions would have expired on plaintiffs’ claim two years 
after defendants began discriminating against blacks, even 
if defendants continued such discrimination to the time 
plaintiffs filed this action. This argument is frivolous. 
Under both Texas and federal law, the relevant date for 
the purposes of the statute of limitations is the last date 
on which defendants improperly harmed plaintiffs. Fur
thermore, plaintiffs may collect damages for any wrong
ful acts defendants committed within the limitations 
period. E.g., Marlowe v. Fisher Body, 489 F.2d 1057, 
1063 (6 Cir. 1973); Macklin v. Spector Freight Systems, 
Inc., 156 U.S. App. D.C. 69, 77, 478 F.2d 979, 987 
(1973); United States v. Georgia Power Co., 474 F.2d 
906, 924 (5 Cir. 1973); Alexander & Polley Const. Co. 
v. Spain, A ll  S.W.2d 301 (Tex. Civ. App.—Tyler 1972 
no writ); Goldman v. Ramsay, 62 S.W.2d 176 (Tex. Civ. 
App.—Texarkana 1933 error dism’d). Defendants’ re
liance on Kittrell v. City of Rockwall, 526 F.2d 715 (5 
Cir.), cert, denied, 426 U.S. 925, 96 S.Ct. 2636, 49 L. 
Ed.2d 379 (1976), is unfounded. That case turned on 
the rule, peculiar to trespass cases, that the statute of 
limitations begins to run on the date when the trespassers 
first entered the land, even if they continue to use the 
land after that date. Baker v. City of Fort Worth, 146 
Tex. 600, 210 S.W.2d 564 (1948). This rule cannot be 
applied when defendants, as in this case, continue to 
violate plaintiffs’ rights with new and distinct actions.



184

[9] Therefore, the district judge erred in holding that 
the statute of limitations totally barred plaintiffs’ § 1981 
claim, Plaintiffs’ cause of action and any recovery they 
may receive, however, must be limited to those violations 
occurring within the two year period immediately preced
ing the filing of the complaint or thereafter.

III.
In addition to holding that statutes of limitations barred 

plaintiffs’ claims, the district court “acknowledge!d] a 
most compelling argument for the equitable doctrine of 
laches in this particular case. . . .” Because we disagree 
with the court’s ruling on the legal defenses, we find it 
necessary to discuss this alternative theory in support of 
the judgment below. Lowe v. Pate Stevedoring Co., 558 
F.2d 769, 770 n.2 (5 Cir. 1977).

[10] In Franks v. Bowman Transp. Co., 495 F.2d 398, 
406 (5 Cir. 1974), rev’d on other grds., 424 U.S. 747, 
96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), this court held 
that the doctrine of laches is applicable to Title YII and 
§1981 actions brought by private plaintiffs, even if the 
legal limitations periods have not run. To apply laches in 
a particular case, the court must find both that the plain
tiff delayed inexcusably in bringing the suit and that this 
delay unduly prejudiced defendants. Save Our Wetlands, 
Inc. v. U.S. Army Corps of Engineers, 549 F.2d 1021, 
1026 (5 Cir.), cert, denied, 434 U.S. 836, 98 S.Ct. 126, 
54 L.Ed.2d 98 (1977). We conclude that the evidence 
before the Court on this summary judgment motion does 
not allow a finding that either of these elements exists.5

S. Which party has the burden of proof on the issues of laches 
is somewhat unclear. See G. Gilmore & C. Black, The Law of Ad
miralty 771-76 (2d ed. 1975); Law v. Royal Palm Beach Colony,



185

Defendants argue that plaintiffs were aware of their cause 
of action at least as early as 1967 when they filed their 
initial charges against defendants with the EEOC. They 
also assert that plaintiffs could have requested a Notice of 
Right to Sue from the EEOC and filed a private action 
in 1970. 35 Fed. Reg. 10006 (June 18, 1970) (currently 
at 29 C.F.R. 1601.256(1977)). Defendants therefore ar
gue that plaintiffs’ failure to file a complaint with the 
district court until 1976 “shows conclusively that they 
have slept on their rights.” Defendants-appellees’ brief at 
28. The only justification plaintiffs offer for this nine-year 
delay in filing suit is their asserted right to await the com
pletion of the EEOC administrative process. The issue 
before us, therefore, is whether plaintiffs’ failure to file a 
private action until after the termination of the EEOC’s 
active, continuing administrative process is unreasonable.

The Supreme Court in Occidental Life Ins. Co. v. 
EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 
(1977), discussed a similar issue. The employer-defend
ant in Occidental Life claimed that either federal or state 
statutes barred the EEOC from initiating suit more than 
three years after a claimant had filed a charge with the 
EEOC. In language particularly applicable to the present 
case, the Court indicated: “When Congress first enacted 
Title VII in 1964 it selected ‘[cjooperation and voluntary 
compliance . . .  as the preferred means for achieving’ the 
goal of equality of employment opportunities.” Id., 91

S78 F.2d 98, 101 (S Cir. 1978); Wheat v. Hall, 535 F.2d 874, 876 
(5 Cir. 1976). The determination is complicated by the fact that the 
question has arisen most often in admiralty cases, which may not be 
entirely controlling in the present case. We find it unnecessary to 
decide this issue, however, because the facts as presented on this 
summary judgment motion, without more, do not allow a finding 
of laches.



186

S.Ct. at 2455. A legislative analysis of the 1972 amend
ments to Title VII is similar:

It is hoped that recourse to the private lawsuit will 
be the exception and not the rule, and that the vast 
majority of complaints will be handled through the 
offices of the EEOC or the Attorney General, as 
appropriate. However, as the individual’s right to 
redress are paramount under the provisions of Title 
VII it is necessary that all avenues be left open for 
quick and effective relief.

118 Cong. Rec. 7565 (1972).

[11, 12]) These statements clearly indicate that the 
private remedy allowed by 42 U.S.C. § 2000e-5(f) (1) is 
only an alternative method for a plaintiff to obtain relief 
from discrimination. A plaintiff cannot be penalized for 
choosing to forgo this alternative and electing instead the 
legislatively and judicially favored method of relying on 
the administrative processes of the EEOC.6 We therefore 
hold that plaintiffs’ failure to file their Title VII claim 
until completion of the EEOC process was not inexcus
able delay and could not support the application of laches.

[13] Plaintiffs’ § 1981 claim is in a slightly different 
posture. We have already decided that the state statute 
of limitations prevents plaintiffs from asserting claims 
arising more than two years before the filing of the com

6. As stated in Sangster v. United Air Lines, 438 F.Supp. 1221 
(N.D. Cal. 1977):

Mrs. Sangster’s reliance on the EEOC to conciliate her dispute 
with United cannot be characterized as lack of diligence on 
her part in view of the strong federal policy favoring such 
reliance. She cannot be found chargeable with neglect which 
would bar her right to bring this action when,, trusting in the 
good offices and promise of her government to seek resolution 
of her complaint, she commits that grievance to its care.



187

plaint. Therefore, any delay occurring before that period 
is irrelevant to the § 1981 claim. Defendnts have not 
alleged that plaintiffs delayed inexcusably in asserting the 
claims arising within those two years. Therefore, it is un
necessary for us to consider whether laches could be in
voked to bar those claims arising within the legal limita
tions period.

[14, 15] We also conclude that, on the evidence pre
sented, any prejudice suffered by defendants was caused 
not by plaintiffs’ delay but by defendants’ own actions. In 
the only affidavit supporting this element of defendants’ 
summary judgment motion, the personnel director of Gulf 
indicated that since the date when plaintiffs allege the 
violations began, defendant Gulf has made several per
sonnel changes, a number of management personnel have 
retired, and two personnel managers have deceased. These 
statements are insufficient grounds on which to base a 
finding of prejudice, The fact that there have been per
sonnel changes or that employees have retired is irrele
vant unless those employees are unavailable. Akers v. 
State Marine Lines, Inc., 344 F.2d 217, 221 (5 Cir. 
1965).

[16, 17] The affidavit does not indicate that two for
mer personnel managers have died and that those em
ployees’ knowledge is irreplaceable. Gulf asserts the live 
testimony of these employees is necessary, however, only 
because it has destroyed the written records of the per
sonnel decisions made from 1965 through 1974. Defend
ants argue that they cannot now adequately defend 
against plaintiffs’ charges without reference to these de
stroyed records. The EEOC informed defendants of the 
charges in 1967. Pursuant to its normal document reten



188

tion plan, Gulf retained documents for only four years. 
Thus, Gulf did not destroy the documents relevant to the 
claims arising in 1965 until 1969, two years after Gulf 
learned of the charges. A party cannot assert the defense 
of laches merely because it has failed to preserve evidence 
despite knowledge of a pending claim. Ameircan Marine 
Corp. v. Citizens Cas. Co., 447 F.2d 1328 (5 Cir. 
1971).7 This rule is of even greater validity in this case 
than in most. Since 1966, the EEOC has maitained a 
regulation prohibiting those charged with Title VII viola
tions from destroying records relevant to the charge. 31 
Fed. Reg. 2833 (Feb. 17, 1966) (currently at 29 C.F.F.. 
1602.14 (1977). Therefore, defendants’ argument that 
plaintiffs’ delay prejudiced defendants is without merit. 
Insofar as defendants have been prejudiced, the evidence 
before the court shows that defendants’ own negligence

7. The concluding statements of the Supreme Court in Occidental
Life are again relevant:

The absence of inflexible time limitations on the bringing of 
lawsuits will not, as the company asserts, deprive defendants 
in Title VII civil actions of fundamental fairness or subject 
them to the surprise and prejudice that can result from the 
prosecution of stale claims. Unlike the litigant in a private action 
who may first learn of the cause against him upon service of 
the complaint, the Title VII defendant is alerted to the possi
bility of an enforcement suit within 10 days after a charge 
has been filed. This prompt notice serves, as Congress intended, 
to give him an opportunity to gather and preserve evidence in 
anticipation of a court action.
Moreover, during the pendency of EEOC administrative pro
ceedings, a potential defendant is kept informed of the progress 
of the action. Regulations promulgated by the EEOC require 
that the charged party be promptly notified when a determina
tion of reasonable cause has been made, 29 CFR § 1601.19b(b), 
and when the EEOC has terminated its efforts to conciliate a 
dispute, id., §§ 1601.23, 1601.25.

97 S.Ct. at 2458.



189

and disregard of EEOC regulations caused the prejudice.8 9 
We conclude that the present facts do not allow findings 
of either unreasonable delay or prejudice. Therefore the 
doctrine of laches is inapplicable.

IV.
[18] Because we are remanding this case for further 

action it is necessary that we consider the propriety of an 
order the district judge entered restricting the parties’ 
communication with the members of the putative class. 
Judge Steger, in Chief Judge Fisher’s absence, originally 
entered an order generally prohibiting all communication 
without exception. Chief Judge Fisher later modified the 
order. It is of this later order that plaintiffs complain on 
appeal. The modified order was explicitly modeled on 
those suggested by the Federal Judicial Center in the 
Manual for Complex Litigation, Part 2, § 1.41 (1977).”

8. Defendants admit that plaintiffs’ § 1981 claims are nearly 
identical to their Title VII claims. Defendants could therefore dis
prove the claims with the same evidence. Since the EEOC regulations 
required defendants to maintain all records relevant to the Title VII 
claims, defendants could not have been prejudiced with respect to 
either Title VII or § 1981.

9. The order provided:
IT IS ORDERED:
(1) That Gulf’s motion to modify Judge Steger’s Order dated 

May 28, 1976 is granted;
(2) That Judge Steger’s Order dated May 28, 1976 be modi

fied so as to read as follows:
In this action, all parties hereto and their counsel are for

bidden directly or indirectly, orally or in writing, to communi
cate concerning such action with any potential or actual class 
member not a formal party to the action without the consent 
and approval of the proposed communication and proposed 
addressees by order of this Court. Any such proposed communi
cation shall be presented to this Court in writing with a desig
nation of or description of all adressees and with a motion and 
proposed order for prior approval by this Court of the proposed



190

Plaintiffs argue that the order was improper for several 
reasons. First, they assert that it is inconsistent with the

communication. The communications forbidden by this order 
include, but are not limited to, (a) solicitation directly or in
directly of legal representation of potential and actual class 
members who are not formal parties to the class action; (b) 
solicitation of fees and expenses and agreements to pay fees and 
expenses from potential and actual class members who are not 
formal parties to the class action; (c) solicitation by formal 
parties to the class action of requests by class members to 
opt out in class actions under subparagraph (b)(3) of Rule 23, 
F. R. Civ. P.; and (d) communications from counsel or a 
party which may tend to misrepresent the status, purposes and 
effects of the class action, and of any actual or potential Court 
orders therein which may create impressions tending, without 
cause, to reflect adversely on any party, any counsel, this Court, 
or the administration of justice. The obligations and prohibitions 
of this order are not exclusive. All other ethical, legal and equi
table obligations are unaffected by this order.

This order does not forbid (1) communications between an 
attorney and his client or a prospective client, who has on the 
initiative of the client or prospective client consulted with, em
ployed or proposed to employ the attorney, or (2) communica
tions occurring in the regular course of business or in the per
formance of the duties of a public office or agency (such as the 
Attorney General) which do not have the effect of soliciting 
representation by counsel, or misrepresenting the status, pur
poses or effect of the action and orders therein.

If any party or counsel for a party asserts a constitutional 
right to communicate with any member of the class without prior 
restraint and does so communicate pursuant to that asserted 
right, he shall within five days after such communication, file 
with the Court a copy of such communication, if in writing, or 
an accurate and substantially complete summary of the com
munication if oral.

(3) That Gulf be allowed to proceed with the payment of 
back pay awards and the obtaining of receipts and releases from 
those employees covered by the Conciliation Agreement dated 
April 14, 1976, between Gulf, the U.S. Equal Employment Op
portunity Commission and the Office for Equal Opportunity, 
U.S. Department of the Interior; That the private settlement 
of charges that the employer has violated Title VII is to be 
encouraged, United States v. Allegheny-Ludlum Industries, Inc., 
517 F.2d 826 (5th Cir. 1975), cert, denied, 425 U.S. 944, 96 
S.Ct. 1684, 48 L.Ed.2d 187 (1976).



191

policies of Rule 23 of the Federal Rules of Civil Pro
cedure and therefore beyond the powers of the district 
court. We reject that argument and hold that the order 
was a permissible exercise of the trial court’s discretion
ary power in controlling a class action.

(4) That the Clerk of the Court mail a notice to all employees 
of Gulf at its Port Arthur Refinery who are covered by the Con
ciliation Agreement and who have not signed receipts and re
leases for back pay awards informing them that they have 45 
days from the date of the Clerk’s notice to accept the offer as 
provided for by the Conciliation Agreement or such offer will 
expire until further order of the Court;

(5) That the contents of the notice be the same as that 
set out in Appendix I;

(6) That Gulf bear the expense of mailing the notice and 
a copy of the Court’s order to the individuals covered by item 
(4) above;

(7) That all employees who have delivered receipts and re
leases to Gulf on or before 55 days from, the date of the Clerk’s 
notice shall be deemed to have accepted the offer as contained 
in the Conciliation Agreement;

(8) That any further communication, either direct or in
direct, oral or in writing (other than those permitted pursuant 
to paragraph (2) above) from the named parties, their repre
sentatives or counsel to the potential or actual class members 
not formal parties to this action is forbidden;

(9) That Gulf inform the Court 65 days from the date of the 
Clerk’s notice to be sent by the Clerk of the Court of the names 
of potential or actual class members who have accepted the 
offer of back pay and signed receipts and releases pursuant to 
the Conciliation Agreement and the names of those who have 
refused or failed to respond.

It is Plaintiff’s contention that any such provisions as herein
before stated that limit communication with potential class 
members are constitutionally invalid, citing Rodgers v. United 
States Steel Corporation, 508 F.2d 152 (3rd Cir. 1975), cert, 
denied, 420 U.S. 969, 95 S.Ct. 1386, 43 L.Ed.2d 649 (1975). 
This Court finds that the Rodgers case is inapplicable, and that 
this order comports with the requisites set out in the Manual 
for Complex Litigation, Section 1.41, p. 106 CCH Edition 1973, 
which specifically exempts constitutionally protected communi
cation when the substance of such communication is filed with 
the Court.



192

As one noted treatise states:

Because class actions tend to be extremely compli
cated and protracted, their management and dispo
sition frequently require the exercise of considerable 
judicial control and ingenuity in the framing of 
orders relating to various aspects of the case. Rule 
23(d) provides the trial court with extensive dis
cretion in achieving this objective and offers some 
guidance as to the types of problems the district 
judge is likely to encounter.

7A C. Wright & A. Miller, Federal Practice & Procedure 
§ 1791 at 193 (1972).10 11

[19-21] We believe the trial judge could have easily 
concluded that his interest in and duty of controlling the 
suit in this manner outweighed any interest plaintiffs’ 
attorneys may have in communicating with members of 
the putative class without the prior approval of the court. 
Rule 23 imposes on the trial judge the duty of assuring 
that a class action is an appropriate way to resolve the 
controversy, the representative parties will fairly and ade
quately protect the interests of the class, the pleading and 
trial of the case is conducted fairly and efficiently, and 
any settlement or compromise is not unfavorable to the 
class.11 The present order could be helpful in exercising

10. See In Re Air Crash Disaster at Florida Everglades, S49 F.2d 
1006, 1012 n. 8 (S Cir. 1977): “In class actions we recognize, in
deed insist upon, the court’s participation as the manager of the case.”

11. Thus, although in the ordinary non-class suit, restrictions such 
as those in the present case might be entered in the form of a 
temporary injunction and only after relatively strict scrutiny of 
specific criteria, the drafters of the Rules felt that the trial judge 
needed broader powers with respect to class actions and specially 
imbued the district court with more extensive authority to control 
the suit.



193

many of these duties, especially those of assuring fairness 
and efficiency. Any communication between the parties 
and class members may mislead the class members by 
appearing to reflect the opinion of the court rather than 
that of the party making the communication. This danger 
exists “simply because of references to the title of the 
court, the style of the action, the name of the judge, and 
to official processes.” Manual for Complex Litigation, 
Part 1, § 1.41 at 27 (C. Wright & A. Miller ed. 1977). 
The trial court should therefore have the power to ex
amine any communication in order to assure that class 
members will not be misled in this manner. Even apart 
from any references to the court, communications to po
tential class members by the parties may unfairly repre
sent facts or issues relevant to the action. When those 
communications are sent during a limited period in which 
class members may opt out of the class, or, as here, in 
which they may accept a back pay offer pursuant to a 
conciliation agreement, any misleading statement may be 
irreparable. The trial judge may also believe that requir
ing prior approval of communications will reduce the 
risk of the class members becoming confused by an ava
lanche of notices, inquiries, and arguments directed to 
them by each of the parties to this action. Thus, there 
are many substantial reasons a trial judge may believe 
that an order such as that suggested in the Manual for 
Complex Litigation is justified.12

12. The Manual enumerates other potential abuses that may 
justify the use of such an order, for example: solicitation of direct 
legal representation of potential and actual class members who are 
not formal parties to the class action; and solicitation of funds and 
agreements to pay fees and expenses from potential and actual class 
members who are not formal parties to- the class action. Arguably 
these concerns are not significant in this case in which the potential 
class is represented by a non-profit organization whose fees are not 
paid directly by the class members.



194

Plaintiffs assert their interests outweigh these concerns 
of the trial judge. Plaintiffs argue that to conduct the 
action adequately they must be allowed to contact class 
members in order both to discover their case and to 
inform class members of their civil rights. They allege 
that the order prevents them from performing those 
functions. This is not true; the order only prohibits con
tact with class members without prior approval of the 
court. Therefore, only plaintiffs’ interest in unrestrained 
communications is to be balanced against the court’s in
terests in requiring court approval of all communications 
sent to class members.

[22-24] Plaintiffs’ ability to discover their case is in 
no way reduced by the requirement that the court ap
prove any contact. It is expected that the trial judge 
will exercise “minimal judicial control of these communi
cations . . . ” and freely allow discovery. Manual for 
Complex Litigation, Part 1, § 1.41 at 29 (C. Wright & 
A. Miller ed. 1977). The trial judge should refuse to 
allow only those attempts at discovery that would clearly 
affect the fairness or efficiency of the litigation adversely. 
Plaintiffs have not shown that this “minimal control” 
would prejudice them in any way. Therefore, we do not 
believe plaintiffs have any significant interest in seeking 
discovery without the prior approval of the court. Simi
larly, to the extent that Rule 23 implicitly provides plain
tiffs with a right to “encourag[e] common participation 
in the litigation of [plaintiffs’ race] discrimination claim,” 
Coles v. Marsh, 560 F.2d 186, 189 (3 Cir.), cert, denied 
sub nom., Blue Cross v. Marsh, 434 U.S. 985, 98 S.Ct. 
611, 54 L.Ed.2d 479 (1977), the same rule’s explicit 
grant of authority to the trial court to control the conduct 
and settlement of the action outweighs plaintiffs’ right.



195

Therefore, although there may be other methods of 
achieving similar results,13 Rule 23 does not prohibit a 
trial court’s discretionary use of an order requiring prior 
approval of communications with class members.14

[25] Plaintiffs next argue that the order is an uncon
stitutional prior restraint on their communication with 
the class and is especially egregious in this case in which 
plaintiffs are represented by an organization highly re
garded as an effective opponent of discrimination. This 
argument is considered and rejected in the recent revi
sion of the Manual for Complex Litigation, Part 1, § 1.41 
at 1-3 (C. Wright & A. Miller ed. 1978 Cum. Supp.) and 
in Waldo v. Lakeshore Estates, Inc., 433 F.Supp. 782 
(E.D. La. 1977). We find it unnecessary, however, to 
decide whether the interests discussed above would also 
justify the prior restraint of any constitutionally protected 
communication. The order in the present case, unlike 
those in Rodgers v. United States Steel Corp., 508 F.2d 
152 (3 Cir.), cert, denied, 423 U.S. 832, 96 S.Ct. 54, 
46 L.Ed.2d 50 (1975), Waldo or the Manual, explicitly

13. Compare Developments in the Law-Class Actions, 89 Ha,rv. 
L. Rev. 1281, 1601-04 (1976), with Waldo v. Lakeshore Estates, 
Inc., 433 F.Supp. 782, 792 n. 10 (E.D. La. 1977).

14. Because the trial judge made no findings of fact concerning 
plaintiffs’ attorneys’ alleged improprieties, the allegations are ir
relevant to our decision. We hold that the trial judge had the power 
to restrict communications without regard to any allegations of un
ethical conduct. This holding is necessary because many of the 
dangers of abuse and irreparable harm discussed above can arise 
without warning. Requiring the district court to find specific evi
dence of the dangers in a particular case before acting would severely 
hamper its ability to control the case. In many instances, the abuses 
must not merely be punished, but must be prevented. This can be 
accomplished only if the trial judge can order the restrictions before 
the abuses have materialized.



196

exempts communications that a party or counsel asserts 
are constitutionally protected from prior restraint.

[26] Despite this provision, plaintiffs argue that the 
order chills their free exercise of protected activities be
cause they can never be certain that the district court 
will agree with their assertion that the communication 
is protected.16 As an example of such a disagreement, 
plaintiffs rely on an incident in the trial court. Plaintiffs 
submitted a document to the court for approval asserting 
that it was constitutionally protected. The judge refused 
to allow plaintiffs to send the document to the class mem
bers. Plaintiffs argue that if they had sent the document 
without submitting it they may have been subject to a 
contempt order. This argument is without merit. The 
exemption applies when the parties make any communi
cation they assert is protected, not merely when the trial 
judge agrees with that assertion. Thus, as long as a 
party or counsel makes any unapproved cqntact with 
class members in the good faith belief that the contact 
is constitutionally shielded, he may not be punished for 
violating the court’s order. Once plaintiffs submitted the 
proposed communication to the district judge, however, 
the exemption for communications they asserted were 
constitutionally protected was no longer relevant. At that 
point the issue became whether the Constitution, in fact, 
protected the communication rather than whether the 
plaintiffs had distributed it in the good faith belief that 
it was constitutionally protected. Plaintiffs have not argued 
on appeal that the trial judge erred in deciding that he

15._ See Note, 88 Harv. L. Rev. 1911, 1922 n. 74 (1975): The 
“proviso exempting constitutionally-protected communication does not 
eliminate—indeed it highlights—the overbreadth and resultant chill
ing effect of the Manual’s proposed rule.”



197

could properly prohibit the distribution of that particular 
document nor have they alleged his determination was 
untimely. They have alluded to the incident only as an 
example of the alleged “chill” the order prohibiting un
approved communication placed on the exercise of their 
first amendment rights, notwithstanding the exception for 
communications they asserted to be constitutionally pro
tected. Therefore, we need not decide whether the judge 
properly prohibited dissemination of this particular notice 
after plaintiffs submitted it for his approval. We note, 
however, that even though the prohibition on unapproved 
communications is permissible, the judge’s separate deci
sions approving or disapproving particular communica
tions would normally be proper subjects for appellate 
review.

[27] We conclude that the present order adequately 
safeguards the first amendment rights of the parties and 
counsel because even if the prohibitions of the order are 
vague or overbroad, the parties can avoid them if they 
assert a good faith belief that a particular communication 
is constitutionally protected. Cf. Screws v. United States, 
325 U.S. 91, 101-02, 65 S.Ct. 1031, 1035-36, 89 L.Ed. 
1495 (1945): “the requirement of specific intent to do a 
prohibited act may avoid those consequences to the ac
cused which may otherwise render a vague or indefinite 
statute invalid.”

[28] Plaintiffs’ final contention is that the order vio
lates their right to equal protection of the laws. This 
claim is based on the assertion that the order allows de
fendant to offer back pay settlements to the class mem
bers and to contact class members in the ordinary course 
of defendants’ business without allowing plaintiffs similar



198

rights. This argument is invalid because it is based on 
an incorrect reading of the order. The order prohibits 
defendants as well as plaintiffs from contacting the class 
members regarding back pay settlements. Rather than 
allowing further contact by either party, it directs the 
court clerk to distribute a notice to class members in
forming them that they have 45 days within which to 
accept the back pay award to which they are entitled 
under the conciliation agreement negotiated by the EEOC 
and directs them not to accept the award if they wish to 
participate in any recovery secured by plaintiffs in this 
action. Further, the provision allowing communication 
with class members in the regular course of business ap
plies equally to all parties and counsel, not merely to 
defendants. It could be argued that allowing contact in 
the regular course of business would tend to favor de
fendants in practice because of their greater day-to-day 
contact with the employees. Any management discussion 
of the merits of the suit with class members, however, 
would not be in the regular course of business. Therefore, 
although defendants may have greater day-to-day contact 
with the class members, the order does not allow defend
ants any greater freedom than plaintiffs in discussing the 
suit with class members.

We therefore conclude that the district court’s order 
of June 22, 1976, is a permissible exercise of the court’s 
power to control class action litigation and is prohibited 
by neither the first nor fifth amendments to the Con
stitution.

The judgment of the district court is REVERSED and 
the case REMANDED for proceedings consistent with 
this opinion.



199

GODBOLD, Circuit Judge, concurring in part, and 
dissenting in part:

I concur in Parts I through III of the majority opinion. 
I dissent from Part IV, which upholds the validity of the 
district court’s order restricting communications by named 
parties and their counsel with any actual or potential class 
member not a formal party.

The issue is important. The critical part of the order 
in question follows the form suggested in the Manual for 
Complex Litigation, 1977 ed., Pt. 2, § 1.41.1 This case 
presents in this circuit for the first time the validity of 
such an order. Another circuit has taken a position con
trary to the majority’s decision.1 2

In other cases I have vigorously asserted the power of 
the district court to manage class actions and other com
plex cases.3 But, in my opinion, the restraints imposed 
in this case contravene Rule 23, F.R.Civ.P., and violate 
freedom of speech and freedom of association as guaran
teed by our Constitution.

I. The history
Understanding the issues requires a more complete his

tory than the brief statement made by the majority. In

1. Sample Pretrial Order No. IS. The suggested form is a re
print of a pretrial order entered by the District Court for the 
Western District of Missouri. Manual, Pt. 2, § 1.41 n.33.

2. Coles v. Marsh, 560 F.2d 186 (CA 3), cert, denied, 434 U.S. 
985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977). See also Rodgers v. 
United States Steel Corp., 508 F.2d 152 (CA 3), cert, denied, 423 
U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975).

3. In re Air Crash Disaster at Florida Everglades, 549 F.2d 
1006, 1012 & n.8 (CA 5, 1977); Huff v. N. D. Cass Co., 485 F.2d 
710, 712-13 (CA 5, 1973) (en banc).



200

April 1976 Gulf and EEOC entered into a conciliation 
agreement covering alleged racial discrimination by Gulf 
against black employees at its Port Arthur, Texas plant, 
pursuant to which Gulf agreed to cease alleged discrim
inatory practices, establish an affirmative action program, 
and offer back pay to alleged discriminatees, ranging, for 
various employees and various periods, between $2.81 
per month of service and $5.62 per month of service. 
The affected employees were not parties to the agreement. 
Gulf agreed to notify affected employees of the back pay 
agreed upon; failure of the employee to respond would be 
regarded as acceptance. According to Gulf, back pay was 
offered to 614 present and former black employees of the 
Port Arthur plant.4

In May 1976, while implementation of the concilia
tion agreement was in progress, six present or retired 
black employees of the Port Arthur plant brought this 
class suit, under Title VII of the Civil Rights Act of 
1964 and 42 U.S.C. § 1981, on behalf of black employ
ees, black former employees of the plant, and black ap
plicants rejected for employment with Gulf Oil Company 
(not limited to the Port Arthur plant). Plaintiffs were 
represented by Stella Morrison, of Port Arthur, Charles 
E. Cotton, of New Orleans, and three New York attor
neys from the NAACP Legal Defense and Education 
Fund, Jack Greenberg, Barry L. Goldstein and Ulysses 
Gene Thibodeaux. Plaintiffs asked injunctive and declara
tory relief and damages. The defendants are Gulf and the 
Oil, Chemical and Atomic Workers’ Union. Plaintiffs 
charged that Gulf discriminated against blacks in hiring 
and job assignments, employed discriminatory tests, paid

4. And 29 female employees.



201

unequal pay, employed racially tainted promotion and 
progression practices, denied training to blacks, refused 
seniority to blacks, and discriminatorily discharged and 
disciplined blacks. They alleged that the union had agreed 
to, acquiesced in or condoned Gulf’s discriminatory prac
tices.

According to affidavits later filed by plaintiffs’ counsel, 
a meeting of black employees who were members of the 
alleged class was held May 22 at the request of the named 
plaintiffs, plaintiffs’ counsel were invited to attend, and 
some did attend. Gulf was served with process May 24. 
On May 27, before Gulf filed responsive pleadings, it 
filed a two-sentence, unsworn request that the court enter 
an order limiting communications by parties and their 
counsel with actual or potential class members. The motion 
was accompanied by an unsworn brief asserting that 
Ulysses Gene Thibodeaux, one of plaintiffs’ attorneys, 
had recommended to actual and potential class members 
at a meeting that they not sign receipts and releases sent 
them pursuant to the conciliation agreement. Further, 
the brief said that it had been reported to Gulf that 
Thibodeaux advised the group that they should mail 
back to Gulf checks received pursuant to the con
ciliation agreement because he could recover twice as 
much for them by the pending suit. Gulf asserted in 
its brief that these actions violated standards imposed 
on attorneys by law and by the Canons of Ethics. 
It asserted that an order of the court was necessary to 
prevent further communication of the type alleged and 
that the statements by plaintiffs’ attorney would prejudice 
its defense of the case and the conciliation efforts. In 
its brief Gulf said that when the summons was served on 
it approximately 452 of the 643 employees entitled to



202

back pay had received checks and executed general re
leases.

On May 28, after oral argument by the parties, Dis
trict Judge Steger entered a temporary order effective 
until Chief Judge Fisher could return and assume con
trol and administration of the case. His order is sub
stantially the same as paragraph 2 of the modified order, 
which appears as note 9 of the majority opinion, that is, 
it contained the restraints without the exceptions. Judge 
Steger made no findings.

On June 8, Gulf filed an unverified motion to modify 
the temporary order to permit it to resume offering back 
pay awards and to receive receipts and releases, as pro
vided by the conciliation agreement. Gulf added, again 
by an unsworn brief attached to its motion, a new al
legation of misconduct by saying that it had been re
ported to Gulf that Thibodeaux had recommended to the 
persons at the meeting that even if an employee had 
signed a receipt and release he should return his check 
to Gulf. Gulf also filed an affidavit from EEOC stating 
that it felt the issues in this suit were “almost identical” 
to those embraced by the conciliation agreement.

Plaintiffs filed an unsworn responsive brief, squarely 
raising the constitutionality of the order and the dis
trict court’s authority to issue it. Judge Fisher conducted 
a hearing on June 10 and allowed time for additional 
briefs. With their next brief plaintiffs filed affidavits by 
Thibodeaux, Morrison and Goldstein, covering several 
points. Thibodeaux denied that he advised potential 
class members not to accept Gulf’s offer of settlement and 
denied that he stated that plaintiffs’ counsel could get em
ployees twice as much back pay by suit. According to the



203

affidavits, none of the lawyers accepted or expected com
pensation from the named plaintiffs or any additional 
named plaintiffs or from members of the class; the only 
anticipated compensation was by attorneys’ fees awarded 
by the court against the defendants, and in the case of 
the LDF attorneys any fees awarded them would be paid 
over to LDF. The affidavits also set out that it was 
necessary for plaintiffs and their counsel to communi
cate with members of the proposed class to investigate 
systematic and individual racial discrimination, complete 
discovery, and define issues in the case, and that, be
cause of the back pay offers made by Gulf under the 
conciliation agreement, it was of crucial importance that 
plaintiffs’ attorneys be able to inform class members of 
their rights and answer their questions and concerns. In 
their brief, plaintiffs asserted that many of the issues 
(specifying several of them) encompassed by the suit 
were not included within the matters covered by the con
ciliation agreement.

On June 22, without requiring Gulf to verify its 
charges of improper and unethical conduct by Thibo
deaux, and without making findings of fact, Judge Fisher 
entered the modified order. He rejected plaintiffs’ con
tention that the order was constitutionally invalid.

I turn to the contents of the modified order. Its opening 
language is plenary in form. I discuss below the excep
tions that appear further on in the order.

The persons enjoined are “all parties hereto and their 
counsel.”5

5. The majority refer several times to the order’s restricting 
communication by the parties. Elsewhere they refer to the interests 
of plaintiffs’ attorneys in communicating with putative class members. 
The order bars both named parties and counsel.



204

The subject matter forbidden is communications “con
cerning [this] action . . . without the consent and ap
proval of the proposed communication and proposed ad
dressees by order of this court.” More specific communi
cations which the proscription includes, but is not lim ited 
to, are: (a) solicitation of legal representation of poten
tial and actual class members not formal parties; (b) 
solicitation of fees and expenses; (c) solicitation of re
quests by class members to opt out; (d) “communications 
from counsel or a party which may tend to misrepresent 
the status, purposes and effects of the class action, and 
of any actual or potential Court orders therein which may 
create impressions tending, without cause, to reflect ad
versely on any party, any counsel, this Court, or the ad
ministration of justice.”

The means of communication forbidden are “directly 
or indirectly, orally or in writing.”

The persons with whom communication is forbidden 
are potential and actual class members.

The second subparagraph of f  (2) sets out exceptions 
as provided in the Manual’s suggested form: communica
tions between attorney and client, and attorney and pros
pective client when initiated by the prospective client, 
and communications in the regular course of business. 
The third subparagraph of ‘f (2) is the “constitutional 
right” exception:

If any party or counsel for a party asserts a con
stitutional right to communicate with any member 
of the class without prior restraint and does so com
municate pursuant to that asserted right, he shall 
within five days after such communication file with 
the Court a copy of such communication, if in



205

writing, or an accurate and substantially complete 
summary of the communication if oral.

In the modified order Judge Fisher added to the 
Manual’s proposed form a provision that the clerk mail 
a notice to employees covered by the conciliation agree
ment stating that they had 45 days in which to accept 
Gulf’s offer and that all who delivered receipts and re
leases within 55 days would be deemed to have accepted. 
See f  (4) and f  (9) of the order. In f  (8) the court 
restated the restraints on communication that it had im
posed in the earlier part of the order.

On July 6, pursuant to the “constitutional right” ex
ception, plaintiffs moved for permission for themselves 
and their counsel to communicate with members of the 
proposed class. They attached the following notice which 
they proposed to distribute and asserted that they were 
constitutionally entitled to distribute it:

Illustration to follow.



206

A T T E N T I O N
BLACK WORKERS 

OF GULF OIL

The Company has asked you to sign a release. If you 
do, you may be giving up very important civil rights. 
It is important that you fully understand what you are 
getting in return for the release. IT IS IMPORTANT 
THAT YOU TALK TO A LAW YER BEFORE YOU 
SIGN. These lawyers will talk to you FOR FREE:

STELLA M. MORRISON 
440 Austin Avenue 
Room 516
Port Arthur, Texas 77640 
(713) 985-9358

BARRY L. GOLDSTEIN
ULYSSES GENE THIBODEAUX 

10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397

CHARLES E. COTTON 
348 Baronne Street 
Suite 500
New Orleans, Louisiana 70112 
(504) 522-2133

These lawyers represent six of your fellow workers in 
a lawsuit titled Bernard v. Gulf Oil Co., which was filed 
in Beamount Federal Court on behalf of all of you. This 
suit seeks to correct fully the alleged discriminatory 
practices of Gulf.



207

Even if you have already signed the release, talk to 
a lawyer. You may consult another attorney. If necessary, 
have him contact the above-named lawyers for more de
tails. All discussions will be kept strictly confidential.

AGAIN, IT IS IMPORTANT THAT YOU TALK 
TO A LAWYER. Whatever your decision might be, we 
will continue to vigorously prosecute this lawsuit in order 
to correct all the alleged discriminatory practices at Gulf 
Oil.

Plaintiffs alleged in their motion that neither Gulf’s of
fer to employees nor the notice sent by the clerk explain
ed the terms of the conciliation agreement. They asked 
the court to declare that the notice was constitutionally 
protected. They noted that under the “constitutional 
right” exception to the order they were entitled to dis
tribute the notice and file it with the court within five 
days thereafter. However, because of what they consider
ed to be the vagueness of the order, and “for reasons of 
prudence,” the plaintiffs asked for the court’s guidance. 
The reasons for asking guidance were not unreasonable. 
The first subparagraph of f  (2) of the order required 
that any proposed communication be presented in writ
ing for prior approval. Paragraph (3) restated all the 
restraints. The “constitutional right” exception appeared 
to permit retrospective filing in place of prior court 
approval. But counsel already charged with unethical 
and illegal conduct cannot be faulted for electing not to 
gamble on their interpretation of the order or upon the 
possibility that if they sent the notice without preclearance 
the Court might find it not constitutionally protected and



208

their assertion of constitutional protection not made in 
good faith.8 As it turned out, their prudence was justified 
because the court ultimately denied permission to send 
the notice.

The request for guidance from the court, filed July 6, 
was appropriate and respectful, and it deserved timely 
court action. To be effective the notice that plaintiffs pro
posed to send needed to be distributed promptly. The 
45 days for acceptance of Gulf’s offer, described in the 
Clerk’s notice, expired on or about August 8. The court 
did not act on plaintiffs’ motion until August 10, when 
it denied the motion by a one-sentence order without ex
planation.

II. Misuse of discretion
I believe that the court misused its discretion in enter

ing the orders in this case.7

(1.) Non-compliance with Rule 23(d)
Rule 23(d) gives the following authority to the court:

In the conduct of actions to which this rule applies, 
the court may make appropriate orders: . . . (3) 
imposing conditions on the representative parties. 
(Emphasis added.)

6. See Rodgers v. United States Steel, 508 F.2d 152, 161 (CA 
3), cert, denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975): 
“The attorneys for the plaintiffs, with appropriate caution, declined 
to test an ambiguous order by violating it and risking contempt.”

7. The district court had not adopted a local rule concerning 
limiting communications in class actions. We are, therefore, not 
concerned with rule-making power but with the authority of the 
court, inherent or conferred by Congress through the Rules, to 
impose the limit on communications. The Manual, Pt. 2, §1.41, 
contains a suggested local rule, an earlier version of which was 
held invalid in Rodgers v. United States Steel, supra.



209

This provision, added in 1966, gives the trial court “ex
tensive power” to control the conduct of a class action. 
7A C. Wright & A. Miller, Federal Practice and Pro
cedure § 1791 (1972). There will be situations in which 
it will be “appropriate” for the court to restrict commu
nications between counsel and potential class members. 
But, however, broad “appropriate” may be it is certainly 
no broader than the limits imposed by the Constitution, 
as discussed in Part III, below. Pretermitting constitu
tional limits, it seems to me that the district court must 
find that restrictions are “appropriate” upon a factual 
showing by the moving party that unsupervised communi
cations between counsel and named plaintiffs on one 
hand and potential class members on the other have 
materialized into actual abuses of the class action device 
or that abuses are imminently threatened.8 In this case, 
“appropriateness” was not proved and no finding of “ap
propriateness” was made by either district judge.

The only arguable grounds I perceive for the order’s 
being “appropriate” are the unsworn statements by Gulf 
that were denied by plaintiffs’ attorney under oath, the 
discussions in the Manual of possible abuses of class 
actions, and the existence of the conciliation agreement 
in the process of implementation.

With respect to the presence of plaintiffs’ counsel at 
the meeting of employees, it seems to me singularly in
appropriate for the district court to rely—if it did rely—

8. The Third Circuit in Coles v. Marsh, S60 F.2d 186, 189 
(CA 3), cert, denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 
(1977), discussed the validity of a similar order restraining com
munications in terms of the district court’s power and held it in
valid. Although I reach the same result as the Coles court, I think 
it is preferable to analyze the question in terms of the district 
court’s discretion.



210

upon Gulf’s representations that Thibodeaux made state
ments which violated both the law and the Canons of 
Ethics. Gulf never presented proof of this hearsay. Un
der oath, Thibodeaux denied making such statements.9

Nor should a judicial decision on “appropriateness” be 
rested upon the discussions in the Manual. With defer
ence to the opinions of the distinguished Board of Editors 
concerning the possibility of abuses in class actions, a 
trial court should not merely presume that in the case 
before it—indeed in all class actions coming before it— 
abuses are either present or threatened.10

9. In this appeal Gulf restates the hearsay as though it were 
fact proved and found. Also it throws in this alternative argument:

By affidavit, one of the Appellants’ attorneys admits to attend
ing the discussions, but denies making any improper statements. 
Whether the statements, in fact, are true is immaterial since the 
admitted appearance by Appellants’ attorneys at such a meeting 
provides the potential for abuse of the class action process which 
the Manual and Rule 23 seeks to prevent.

Br. p. 42. Counsel for Gulf treat more lightly charging an attorney 
with unethical and improper conduct than I would be willing to do.

10. The Manual cites Weight Watchers oj Philadelphia v. Weight 
Watchers International, Inc., 4SS F.2d 770 (CA 2, 1972), as confirm
ing an “almost unreviewable discretion” in trial courts to regulate 
communications between counsel and active and potential class mem
bers. Weight Watchers rests upon the unreviewability of discretionary 
orders by mandamus. The issue is before us by appeal. In Rodgers, 
the Third Circuit said:

[T]he committee which drafted the Manual probably went too 
far in its apparent assumption that Craig v. Harney, [331 U.S. 
367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947)] and Bridges v. 
California, [314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941)] 
would permit the vesting of unreviewable discretion in a dis
trict court to impose a prior restraint on communication or 
association. 1 J. Moore, [Federal Practicce (f 1.41, at 29 n. 28, 
(2d ed. 1974, Part 2)].

508 F.2d at 165. Rodgers granted mandamus against use of a local 
rule then appearing in the Manual and since amended. I discuss in 
Part III, below, the consittutional limitations imposed by Craig v. 
Harney and Bridges v. California.



211

The order in this case was entered pursuant to the au
thority given the district court under Rule 23(d). That 
rule requires the district judge to exercise his discretion 
in making orders. He is only authorized to make “appro
priate orders,” and a determination of what is appro
priate requires the exercise of discretion. What is appro
priate for one case is inappropriate in another. If com
munications between counsel and actual and potential 
members of a class action were always abusive of the class 
action device then it would be appropriate to automati
cally enter an order restricting communications. Such 
communications, however, in many instances serve to 
effectuate the “purposes of Rule 23 by encouraging com
mon participation in [a lawsuit].” Coles v. Marsh, supra 
at 189. The decision whether to restrict communications 
in a particular case, therefore, requires an inquiry into 
the likelihood of abuse and the potential for benefits. The 
Manual’s general discussion of potential abuses flowing 
from unrestrained communications is no substitute for 
reasoned inquiry into the harms and benefits on the par
ticular facts of each case. The rule requires no less.11 11

11. In Waldo v. Lakeshore Estates, Inc., 433 F.Supp, 782 (E.D. 
La. 1977), the district court rejected the claim that it exceeded its 
rule-making authority under Rule 83 by adopting its Local Rule 
2.12(e), identical to the Manual’s suggested Rule. The court con
cluded that “[t]he potential abuses attendant upon . . . unregulated 
communication clearly undermine the efficacy of the class action 
device.” Id. at 794. The local rule was, therefore, consistent with' 
the Federal Rules of Civil Procedure, the standard for judging the 
validity of a local rule. The difficulty with the district court’s 
analysis is that Rule 2.12(e) applies to every case. It does not 
permit the district judge in an individual case the discretion to 
not restrict communications, although in some cases it would be 
inconsistent with the policies of the Federal Rules to restrict com
munication. A refined approach that does not sweep so broadly that 
it does away with the benefits of attorney-client contact and recog
nizes the interests that putative class members have in receiving



212

Here, at the appellate level, the majority grounds its de
cision on possibilities rather than actualities. It refers to 
what the parties “may do,” to what the trial judge “could 
have easily concluded,” how the order “could be helpful” 
to the judge in exercising his Rule 23 duties, to what the 
judge “may believe” and of how communications “may 
mislead.” This is not the stuff of which judicial decisions 
are made.

The final potential justification for the court’s order 
is the strong emphasis upon settlement of Title VII dis
putes by conciliation rather than in the courtroom. U. S. 
v. Allegheny-Ludlum, Industries, Inc., 517 F.2d 826, 846 
(CA 5, 1975). But, as we noted in Allegheny-Ludlum,

the “final responsibility for enforcement of Title VII 
is vested with federal courts,” . . . [T]he various 
legal remedies for employment discrimination are 
cumulative and complementary. From the grievant’s 
standpoint, “[u]der some circumstances, the adminis
trative route may be highly preferred over the 
litigatory; under others the reverse may be true.”

Id . at 848 & n.26 (quoting Alexander v. Gardner-Denver 
Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 
147, 156 (1974), and Johnson v. Railway Express 
Agency, Inc., 421 U.S. 454, 461, 95 S.Ct. 1716, 1720,

communications is called for. The need for such an approach was 
recognized by District Judge Bue in his report accompanying the 
Southern District of Texas’ amendments to its local rule restricting 
communications, discussed injra. Judge Bue’s discussion focuses pri
marily on constitutional problems with the Manual’s rule. A similar 
need for a narrow rule that successfully guards against abuses while 
not doing away with the benefits of communication is also required 
so that it does not run afoul of Rule 83’s mandate that district 
courts adopt only local rules that are consistent with the policies 
of the Federal Rules.



213

44 L.Ed.2d 295, 302 (1975)). In Rodriguez v. East 
Texas M o to r Freight, 505 F.2d 40 (CA 5, 1974), vacat
ed on other grounds, 431 U.S. 395, 97 S.Ct. 1891, 52 
L.Ed.2d 453 (1977), we commented on the possible 
divergence of governmental interests in remedying em
ployment discrimination and the interests of the indivi
duals who were the victims of discrimination:

While the Government may be willing to compro
mise in order to gain prompt, and perhaps nation
wide, relief, private plaintiffs, more concerned with 
full compensation for class members, may be willing 
to hold out for full restitution.

Id. at 66. The choice between the lawsuit and accepting 
Gulf’s back pay offer and giving a general release was 
for each black employee to make. The court could not 
make it for him, nor should it freight his choice with re
strictions that were not “appropriate” under the circum
stances. Gulf had represented to the court that the con
ciliation agreement was fair and embraced substantially 
the same issues as the suit. But plaintiffs’ counsel had 
represented that the conciliation agreement was seriously 
deficient; that on its face it neither made the black em
ployees whole nor satisfied the dictates of Title VII; that 
the relief supplied was inadequate because the goals were 
statistically improper, there was no firm commitment to 
timetables, and there was no relief from illegal testing. 
Plaintiffs had set out other objections as well. According 
to plaintiffs, the notices sent out by Gulf did not even 
explain how back pay was computed.

The conclusion is inescapable that the court’s limita
tion on communications was intended to further em
ployees’ accepting conciliation awards in preference to



214

participating in the suit.12 Predetermining whether a court 
can ever appropriately do this, in this instance it could 
not, in deciding “appropriateness,” elect to favor concilia
tion and frustrate or chill the right of black employees 
to choose the litigation route by cutting them off from 
talking with the named plaintiffs and with the only at
torneys who had direct expertise about the suit.

The majority has failed to take into consideration the 
benefits flowing from communication between the parties 
and the potential class members. In racial discrimination 
cases group solidarity may be vital to trigger and to sus
tain the willingness to resort to legal remedies for the 
removal of discrimination, but the court order bars black 
plaintiffs from all communication with fellow blacks em
ployed by Gulf concerning this case. The majority also 
does not give weight to the need and desire of potential 
class members for advice of counsel concerning back pay 
versus lawsuit. The order permits a potential class mem
ber to confer with attorneys for plaintiffs at the pros
pective class member’s request. Pragmatically this is a 
dubious exception. A prospective class member must find 
out who the attorneys are and when and where to see 
them, but the actual class members are forbidden to give 
him this information—or any other information about the 
case—without prior court approval, nor can counsel fur
nish this information to potential class members generally.

The wide disparity between what was done here and 
normal judicial procedures is demonstrated by posing this

12. If not otherwise clear, the court’s approach was made clear 
by its direct entry into the conciliation effort (discussed below), 
and its withholding action on plaintiffs’ request for permission to 
send the proposed notice until after the time had expired for ac
cepting back pay awards.



215

question: “What would have happened if Gulf had asked 
for a temporary injunction imposing the exact restric
tions that were imposed in this case?” I believe that the 
court would have insisted upon requirements of notice, 
time limits, proof of likelihood of harm, the public interest 
and similar familiar requirements, and this court would 
have reviewed an injunction under the usual standards, 
especially since constitutional rights are involved.

The limitations I suggest do not diminish the signi
ficance of the potential problems seen by the draftsmen 
of the Manual and by the majority here, I would simply 
require a showing that the problems are real and not im
aginary.

To the extent the majority bases its approval of the 
lower court’s orders on the premise that it is always ap
propriate to restrict communications in class actions, that 
premise is peculiarly unfounded in this case. The counsel 
silenced without factual showing include those from the 
Legal Defense Fund, recognized by the Supreme Court 
as having “a corporate reputation for expertness in pre
senting and arguing the difficult questions of law that 
frequently arise in civil rights litigation,” NAACP v. 
Button, 371 U.S. 415 at 422, 83 S.Ct. 328 at 332, 9 
L.Ed.2d 405 at 411-12 (1963), and engaged in “a dif
ferent matter from the oppressive, malicious or avari
cious use of the legal process for purely private gain.” 
Id. at 443, 83 S.Ct. at 343, 9 L.Ed.2d at 424. See also 
Miller v. Ampsement Enterprises, Inc., 426 F.2d 534, 
539 n.4 (CA 5, 1970).

(2.) Court involvement in conciliation
Apart from the order’s limit on communications, it 

inappropriately involved the court in the extra-judicial



216

conciliation effort. Gulf had mailed out back pay offers 
before suit was filed. In its motion to modify Judge Ste- 
ger’s order, Gulf asked the court to direct the clerk to 
send notices to all employees who had not accepted its 
offer and signed releases. Gulf’s theory was that the court 
could do this under its power to supervise a settlement. 
The court granted the motion and extended the time for 
acceptance to 55 days from the date of the clerk’s notice. 
The back pay offers were not offers to settle a lawsuit. 
The nudge given to black employees who had not ac
cepted Gulf’s offer, given under the official imprimatur 
of the court, was not permissible.

I would hold that the order was improvidently entered 
under the terms of Rule 23(d). Perhaps Rule 23(d) 
merely restates an implied power of the court. If that is 
so, exercise of the power is limited by the same re
straints on the court’s discretion that I have already dis
cussed. I turn then to constitutional limitations.

III. The constitutional issues
The general rule is that otherwise protected utterances 

concerning the courts may be punished by contempt only 
if they pose “an imminent, not merely a likely threat to 
the administration of justice.” Craig v. Harney, 331 U.S. 
367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546, 1552 
(1947). The likelihood must be great that a serious evil 
will result, and the evil itself must be substantial. Bridges 
v. California, 314 U.S. 252, 260-63, 62 S.Ct. 190, 192- 
94, 86 L.Ed. 192, 202-03 (1941). Significantly, it is 
these two cases to which the Manual turns in addressing 
constitutional limitations. Pt. 2, § 141, n.33. Nor does 
the constitutional rule change when applied to lawyers,



217

even when they participate in the judicial process. In re 
Halkin, —U.S.App.D.C.—, 598 F.2d 176, 47 Cr.L. 
Rep. 2413 (1979). A lawyer’s First Amendment rights 
to comment about pending or imminent litigation can be 
proscribed only if his comments pose a “ ‘serious and im
minent threat’ of interference with the fair administra
tion of justice.” Chicago Council of Lawyers v. Bauer, 
522 F.2d 242, 249 (CA 7, 1975), cert, denied, 427 U.S. 
912, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976) (quoting 
In re Oliver, 452 F.2d 111 (CA7, 1971); accord, Chase 
v. Robson, 435 F.2d 1059, 1061 (CA 7, 1970); cf. U.S. 
v. Tijerina, 412 F.2d 661, 666 (CA 10), cert, denied, 
396 U.S. 990, 90 S.Ct. 478, 24 L.Ed.2d 452 (1969) 
(reasonable likelihood that comments by criminal de
fendants will prevent a fair trial justifies court order pro
hibiting extrajudicial comments).

In this case the subject matter of the restraint on coun
sel’s right to talk with potential class members about the 
case is plenary. The restraint is not limited to prohibiting 
solicitation of potential clients, discussed below. The at
torneys may not counsel a black employee free of any 
effort to solicit him. The Third Circuit, in Rodgers, in 
holding invalid a local rule that contained a similar pro
hibition on communications between counsel and poten
tial class members18 did not reach the constitutional issue 
but noted the problem:

The imposition of such a condition upon access to the 
Rule 23 procedural device certainly raises serious first 
amendment issues. See New Jersey State Lottery Comm’n 13

13. The local rule in issue in Rodgers did not include the “con
stitutional right” exception which has been added to the suggested 
form in the Manual. I discuss below that this does not remove the 
constitutional issue.



218

v. United States, 491 F.2d 219 (3d Cir.), cert, granted, 
417 U.S. 907, 94 S.Ct. 2603, 41 L.Ed.2d 211 (1974). 
There is no question but that important speech and as- 
sociational rights are involved in this effort by the NAA- 
CP Legal Defense and Education Fund, Inc. to com
municate with potential black class members on whose 
behalf they seek to litigate issues of racial discrimination. 
See, e. g., United Transportation Union v. State Bar, 401 
U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971); NAA- 
CP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 
(1963). And the interest of the judiciary in the proper 
administration of justice does not authorize any blanket 
exception to the first amendment. See Wood v. Georgia, 
370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962); 
Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 
1546 (1947); Pennekamp v. Florida, 328 U.S. 331, 66 
S.Ct. 1029, 90 L.Ed. 1295 (1946); Bridges v. Califor
nia, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941). 
Whatever may be the limits of a court’s powers in this 
respect, it seems clear that they diminish in strength as 
the expressions and associations sought to be controlled 
move from the courtroom to the outside world. See T.' 
Emerson, The System of Freedom of Expression 449 et 
seq. (1970).
508 F.2d at 162-63.

Next I turn from the general restraint on the attorney 
to the specific restriction against solicitation in subpara
graph (a) of f  2 of the order: “[Solicitation directly 
or indirectly of legal representation of potential and actual 
class members who are not formal parties to the class 
action.” NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 
9 L.Ed.2d 405 (1963), and its progeny, In re Primus, 436



219

U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978), United 
Transportation Union v. State Bar of Michigan, 401 U.S. 
576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971), United 
Mine Workers v. Illinois Bar Ass’n, 389 U.S. 217, 88 
S.Ct. 353, 19 L.Ed.2d 426 (1967), and Railroad Train
men v. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 
L.Ed.2d 89 (1964), mandate the conclusion that sub- 
paragraph (a) is unconstitutional. In Button, the Court 
concluded that NAACP solicitation of persons to bring 
civil rights suits was protected activity under the First 
and Fourteenth amendments. 371 U.S. at 428-29, 83 
S.Ct. at 335, 9 L.Ed.2d at 415.14 The solicitation was 
treated as a mode of political expression effectuated 
through group activity falling within the sphere of as- 
sociational rights guaranteed by the First Amendment. 
The solicitation activities considered in Button included 
holding meetings to explain legal steps needed to achieve 
desegregation. At these meetings forms were circulated 
which authorized LDF attorneys “to represent the signers 
in legal proceedings to achieve desegration.” 371 U.S. 
at 421, 83 S.Ct. at 332, 9 L.Ed.2d at 411.

In view of Gulf’s statements to the trial court and the 
countering affidavit by plaintiffs’ attorney, we do not 
know whether there has been express solicitation in this 
case similar to the distribution of forms in Button.15

14. Because this case involves a restriction imposed by a federal 
court, the Fourteenth Amendment is not implicated.

15. The notice that plaintiffs asked leave to send does not 
explicitly solicit persons to engage plaintiffs’ attorneys or to join 
in the class but urges employees to seek legal advice and to become 
informed. It tells employees that plaintiffs’ attorneys will talk to 
them without charge, suggests as an alternative talking to some 
other attorney, and emphasizes that the class action will proceed. 
No one is expressly urged to join the class, reject a release,, or re
turn a check.



220

Whether plaintiffs’ attorneys’ attendance at the meeting 
was solicitation is not determinative. Here, as in Button, 
the subject matter is racial discrimination. Plaintiffs’ at
torneys are already engaged on behalf of black employees 
in seeking to vindicate their civil rights through court 
action, while in Button they were seeking clients to 
begin a suit. In both cases the activities at issue are 
those of LDF lawyers. The only material difference 
is that here employees must choose between the law
suit and a conciliation offer while in Button there had 
been no conciliation and offer. The people attending 
the meetings held by the LDF lawyers in Button, how
ever, did have to choose between initiating a lawsuit 
and not participating in a lawsuit. The type of choice the 
people would have to make here and in Button is not so 
different that the solicitation that could have occurred in 
this case was outside the scope of activity protected by 
Button. The characteristics of the solicitation that brought 
it within constitutional protection in Button are equally 
present in this case.

The continued vitality of Button was recently affirmed 
by the Supreme Court in In re Primus, supra. There the 
Court reversed a disciplinary reprimand issued against an 
ACLU lawyer for solicitation, 436 U.S. at 419, 98 S.Ct. 
at 1899, 56 L.Ed.2d at 427. The Court considered the 
economic relationship between the lawyer and the person 
solicited, the purpose of the litigation and the possibility 
of a conflict of interest between counsel and prospective 
client. Because the lawyer had no direct financial stake 
in the case, the case was a means of expressing a political 
belief, and there was no evidence of overreaching or mis
representation, the Court concluded that South Carolina’s



221

punishment of Primus for solicitation violated her First 
Amendment rights.16 *

Because the activity prohibited by subparagraph (a) 
of the district court’s order is constitutionally protected 
activity it is necessary to consider whether there is a com
pelling government interest that justifies the prohibition 
and whether the means used are sufficiently specific “ ‘to 
avoid unnecessary abridgment of associational free
doms.’ ” Id. at 432, 98 S.Ct. at 1905, 56 L.Ed.2d at 434- 
35 (quoting Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 
612, 637, 46 L.Ed.2d 659, 691 (1976)). The Primus 
Court recognized that “the prevention of undue influence, 
overreaching, misrepresentation, invasion of privacy, con
flict of interest, [and] lay interference,” 436 U.S. at 432, 
98 S.Ct. at 1905, 56 L.Ed.2d at 435, are evils the state 
may guard against and that these problems sometimes 
result from lawyer solicitation of clients. The Court went 
on to state, however, that prophylactic rules intended to 
guard against such evils are not permissible when aimed 
against constitutionally protected forms of solicitation be
cause of their impact on First Amendment rights. Id. 
When dealing with Button-type solicitation, as opposed 
to commercial forms of solicitation, see Ohralik v. Ohio 
State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56

16. Ohralik v. Ohio State Bar Ass’n, 436 U .S. 447, 98 S.C t.
1912, 56 L .E d .2 d  444 (1 9 7 8 ), decided th e  sam e d ay  as Primus, 
sustained , aga in st constitu tional objections, b a r  sanctions of an  a t 
to rney  for so licitation . F o r  pu re ly  pecun ia ry  gain  he v isited  in  the 
hosp ita l a  person in ju red  in an  au tom obile  acciden t and  solicited 
her as  a  client. N o  po litica l expression or associational r ig h ts  or 
v ind ication  of illegal racial d iscrim ination  was involved. O hralik  
based  h is constitu tional claim  solely on th e  com m ercial speech doc
trine . See also Pace v. Florida, 368 So.2d 340 (F la . 1979); Adler, 
Barish, Daniels, Levin & Creskoff v. Epstein, 393 A .2d 1175 (P enn . 
1978).



222

L.Ed.2d 444 (1978), discussed in note 16, supra, there 
must be a showing that the solicitation “in fact involved 
the type of misconduct” 56 L.Ed.2d at 436, that may be 
constitutionally guarded against. A showing of potential 
danger does not suffice.17 The lower court made no find
ings whether the substantive evils the court was constitu
tionally entitled to guard against had occurred. Without 
such findings subparagraph (a) of the order cannot 
stand.18

17. A s s ta ted  b y  th e  Primus C o u rt
R igh ts  of po litica l expression and  association  m ay  n o t be  

ab ridged  because of s ta te  in te rests  asserted  b y  ap p e lla te  counsel 
w ith o u t su b stan tia l suppo rt in  th e  record  or findings of th e  
s ta te  court. See First National Bank of Boston v. Bellotti, 435 
U.S. 765, 789, 98 S.C t. 1407, [1423,] 55 L .E d .2 d  707 (1 9 7 8 ); 
United Transportation Union v. Michigan Bar, 401 U .S ., a t  581, 
91 S .C t. 1076 [, a t  1080] 28 L .E d .2 d  339 ; Sherbert v. Verner, 
374 iU.S. 398, 407, 83 S .C t. 1790, [1795,] 10 L .E d .2 d  965 
(1 9 6 3 ); Button, 371 U .S. a t  442-443, 83 S.C t. 328 [, a t  342- 
343], 9 L .E d .2 d  405 ; Wood v. Georgia, 370  U .S. 375, 388, 82 
S .C t. 1364, [1371,] 8 L .E d .2 d  569 (1 9 6 2 ); Thomas v, Collins, 
323 U .S. 516, 530, 536, 65 S .C t. 315 [322, 325,] 89 L .E d . 430 
(1 9 4 5 ).

436 U .S. a t  434 n. 27, 98 S .C t. a t  1906 n. 27, 56 L .E d .2 d  a t  436 
n. 27.

18. S ubparag raph  (b )  of f  2 of th e  o rd e r  fo rb id s so lic ita tion  of 
fees and  expenses desp ite  th e  affidav it se tting  o u t th a t  th e  N A A C P  
prov ides its  services free of charge. A rguably  th is  hypo the tica l re
s tra in t does no in ju ry  except to  th e  ex ten t i t  adds to  th e  overall 
chilling effect. H ow ever, I  th in k  i t  is ap p ro p ria te  to  com m ent on it  
since i t  is p a r t  of th e  Manual’s form . In  United Transportation Union 
v. State Bar of Michigan, supra, th e  S uprem e C ourt in te rp re ted  
Button and  cases follow ing it  to  s tan d  for th e  proposition  th a t  “ col
lective ac tiv ity  u n d ertak en  to  ob ta in  m eaningful access to  th e  courts 
is a  fundam en ta l r ig h t w ith in  th e  p ro tec tion  of th e  F irs t A m end
m en t.” Id. a t  585, 91 S .C t. a t  1082, 28 L .E d .2d a t  347. I n  a t  leas t 
som e situa tions the  collection or so licitation  of funds to  defray  
litiga tion  costs is a  necessary ad ju n c t to  ob ta in ing  m eaningfu l access 
to  th e  courts, I  w ould, therefore, g ive such ac tiv ity  constitu tional 
p ro tec tion  in  ap p ro p ria te  cases. T h e  degree of p ro tec tion  w ould v ary  
according to  th e  use to  w hich th e  funds are  to  be  p u t. I f  th ey  a re  
to  be  used to  p ay  law yers, th e  so lic ita tion  p resen ts som e of th e



223

Subparagraph (d) of f  2 is applicable to this case and 
is in my view facially unconstitutional. It is narrower than 
the plenary proscription in the first sentence of the order, 
which prohibits all communications concerning the suit. 
Subparagraph (d) prohibits what might be called “ob
jectionable communications.” It prohibits all communica
tions “which may tend to misrepresent [the class action] 
. . . and . . . which may create impressions tending, with
out cause to reflect adversely on any party, nay counsel, 
this Court or the administration of justice.” (Emphasis 
added.) The order is overbroad because it is not limited 
to the clear and present danger test. “May tend to mis
represent,” and “may create impressions” are not enough 
to justify suppression of protected speech. See Chicago 
Council of Lawyers v. Bauer, supra at 249. Also, while 
speech that poses an imminent threat to the fair adminis
tration of justice may be properly prohibited, speech that 
reflects adversely on any party or counsel may not. The 
only interests to which the First Amendment may be sub
ordinated are compelling government interests. The gov
ernment has no compelling interest in assuring that noth
ing unflattering will be said about Gulf or its attorneys.

It seems to me unnecessary to dwell at length on the 
vagueness of the order, particularly subparagraph (d).

dangers recognized in  Primus and  Ohralik th a t  a  s ta te  o r  co u rt m ay  
p roperly  guard  against. I f  th e  funds are  to  be used to  d e fray  litig a
tion  expenses, th e  solicitation  is closer to  th e  h e a r t o f gain ing  access 
to  th e  courts. See Norris v. Colonial Commercial Corp., 77 F .R .D . 
672, 673 (S .D . O hio, 1977) (so lic ita tion  of funds to  d e fray  litig a 
tion  expenses of class ac tion  perm itted  w ith  ce rta in  requirem ents 
im posed on th e  con ten t of th e  solicitation  le tte r) . See also Sayre v. 
Abraham Lincoln Federal Savings & Loan Ass’n, 65 F .R .D . 379, 
384-86 (E .D . P enn ., 1974), modified, 69 F .R .D . 117 (1 9 7 5 ).

S ubparag raph  (c ) of ]f 2, re la ting  to so licitation  of “ opt o u t” re 
quests, seem s to  m e to  have  no  ap p lica tion  to  th is  case. I t  applies 
on ly  to  R u le  2 3 ( b ) ( 3 )  class actions, and  th is  ac tion  w as b rough t 
p u rsu an t to  2 3 ( b ) ( 2 ) .



224

In advising a potential class member of the relative mer
its of class action versus back pay offered under the con
ciliation award, counsel will almost, inevitably say some
thing that will be construed to reflect upon Gulf’s offer— 
indeed that is at the heart of this whole matter of lawsuit 
versus settlement. If counsel goes to an employees’ meet
ing at all,19 the only safe advice to him is to remain mute.

In a thoughtful analysis of the constitutional issues in
volved in this case, District Judge Boyle, in Waldo v. 
Lakeshore Estates, Inc., 433 F.Supp. 782 (E.D.La.,
1977), rejected a constitutional attack on his district’s 
Local Rule 2.12(e) which is identical to the Manual’s 
suggested rule. The court recognized that its rule

restricts not only certain expressions by parties and 
counsel, but also impinges upon the constitutionally- 
derived interest of the recipient(s) to secure the 
communication. . . . Likewise limited by the rule’s 
operation is the opportunity of the plaintiff organi
zation to communicate concerning legal redress with 
those members who are not formal parties to the 
suit, which activity ordinarily would be entailed in 
the freedom of association and the collective right 
of an organizational membership to achieve effec
tive judicial access.

Id. at 787 (citations and footnote omitted). The court 
then went on to catalogue the interests served by the Loc
al Rule: (1) prohibition of solicitation of representation 
or funds protects laymen from unscrupulous attorneys 
and helps preserve the legal profession’s image; (2) pres
ervation of the court’s obligation “to direct the ‘best no
tice practicable’ to class members, advising them of their

19. A ssum ing m erely  being th e re  is n o t “ ind irec t com m unication” 
as  G ulf would seem  to  contend , see n .9 , supra.



225

privilege to exclude themselves from the class,” id. at 790, 
pursuant to Rule 23(c)(2) for class actions brought 
under Rule 23(b)(3 ); and (3) the administration of 
justice by preventing misrepresentations. Id. at 790-91. 
The court found these objectives sufficiently important to 
override the inhibitions on First Amendment rights and 
that the rule is the least drastic alternative.

I have several problems with the district court’s analy
sis. First, the three categories of interests served by the 
rule can be tied to the specific prohibitions. The court 
does not explain how the plenary prohibition against all 
communications absent prior approval serves the specified 
goals other than to note that “the ingenuity of those 
determined to wrongly take advantage of the class action 
procedure would likely prevail over any . . . attempt at 
prohibition by itemization.” Id. at 791-92. I think the 
plenary prohibition in the first sentence of f  2 of the 
order is facially overbroad. Communications that do not 
threaten any of the interests enumerated by the court 
are prohibited. When dealing with First Amendment 
rights, greater specificity is required.

District Judge Bue of the Southern District of Texas 
reached the same conclusion as I reach in his analysis 
of the amendments his district adopted to the Manual’s 
suggested rule. The Southern District’s rule contains only 
the specific prohibitions, dropping the across-the-board re
straints. The primary reason for the change was to avoid 
a violation of the First Amendment by overbreadth: “The 
key to a constitutional rule which regulates class com
munication is to narrow down those instances in which a 
prior restraint is imposed to those in which the types of 
communications subject to judicial review before dis
semination are clearly defined and clearly capable of



226

Rule 23 abuse.” Bue, Analysis of Proposed Revision of 
Local Rule 6 of the United States District Court for the 
Southern District of Texas, (quoted in Bulletin, Manual 
for Complex Litigation, Federal Judicial Center, 9-10 
(Aug. 25, 1978)).

Also, Waldo fails to distinguish between commercial 
forms of solicitation and Button-type solicitation. The 
significance of this distinction has already been discus
sed. Because the rule does not make this distinction, its 
prohibition on solicitation is overbroad. The government 
interests that may legitimately be protected by prohit- 
ing commercial solicitation do not usually need to be 
protected when Button-type solicitation is involved be
cause it does not pose the same dangers as commercial 
soliciation. Moreover, the constitutional scrutiny given 
to a ban on commercial solicitation or punishment for 
engaging in such solicitation is significantly lower than 
the scrutiny given prohibitions on Button-type solicita
tion. Commercial solicitation is protected only by the 
commercial speech doctrine, which requires a lower level 
of scrutiny than required when there is an infringement 
of the constitutional rights of association and political 
expression which occurs when Button-type solicitation is 
prohibited. Compare In re Primus, supra, with Ohralik 
v. Ohio State Bar Association, supra.

The Waldo court’s concern with protecting the admin
istration of justice from misrepresentations of cases pend
ing before it is legitimate. But the “reasonable likelihood” 
standard incorporated in the rule simply fails to comply 
with constitutional standards.

The proviso permitting post-distribution filing of a 
notice thought to be constitutionally protected is not a



227

cure. “This provision does not eliminate—indeed it high
lights—the overbreadth and resultant chilling effect of the 
[Manual’s] proposed rule.” Comment, 88 Harv.L.Rev. 
1911, 1922 n. 74 (1975). The majority’s conclusion that 
the assertion of a good faith belief gives total protection 
is disingenuous. The district court would still be entitled 
to inquire into the bona fides of counsel’s belief."'0 Be
cause counsel may be called upon to establish the basis 
for his good faith belief, and therefore is put at risk for 
possibly violating the court’s order, the good faith ex
ception does not ameliorate the chilling effect of the or
der. It is little comfort for a conscientious attorney to 
be told that he may communicate with potential class 
members but that at a later time may be called upon by 
the court to justify the communication.Even if facially

20. A lthough  Screws v. U. S., 325 U .S. 91, 65 S .C t. 1031, 89 
L .E d . 1495 (1 9 4 5 ), p ro b ab ly  requ ires a  show ing of specific in te n t 
to  v io la te  th e  c o u r t’s o rder, th a t  is ce rta in ly  no t th e  to ta l p ro tec tion  
from  pun ishm en t envisioned b y  th e  m a jo rity ; indeed, i t  ind ica tes th a t 
a ssertio n  of good fa ith  is  n o t to ta l p ro tec tion .

21. T h e  m a jo rity  argues th a t  “ [o jnce p la in tiffs subm itted  th e  
proposed  com m unication  to  th e  d is tric t jud g e  . . . th e  exem ption fo r  
com m unications they  asserted  w ere constitu tionally  p ro tec ted  was 
n o  longer re lev an t.” T h e  issue befo re  th e  d is tric t co u rt on a  m otion 
for perm ission to  d is trib u te  w ould be w hether th e  proposed com 
m unication  is constitu tio n a lly  p ro tec ted , b u t th e  issue on th is  appeal 
is th e  constitu tio n a lity  vel non of th e  order. In  our exam ination  of 
th is  issue, th e  constitu tional exception provision is ce rta in ly  re levan t; 
indeed th e  unw illingness of th e  a tto rn ey s  to  rely  on th e  exception in  
d is trib u tin g  th e  leafle t dem onstra tes th e  o rd e r’s chilling effect. I t  is 
th e  p roof o f th e  pudding . H av ing  lost on th e ir  m otion  to  have th e  
o rder restra in in g  th e ir  com m unications declared  unconstitu tional, the  
reasonable— and  respectfu l— course for them  to  follow w as to  ask  
th e  c o u r t’s gu idance before d is trib u tin g  th e  leafle t ra th e r  th a n  tak e  
th e ir  chances u n d er th e  constitu tional exception. I  assum e th a t  the 
m a jo rity  does n o t m ean  th a t  h ad  the plain tiffs specifically renew ed 
th e ir  constitu tional ob jection  to  th e  o rd er a t  th e  tim e th ey  requested  
perm ission to  d is trib u te  th e  lea ftle t th e  chilling effect of th e  order 
could no t have  been considered b y  th e  d is tric t court. Such a  position



228

a cure, the constitutional exception is no cure as applied 
to these plaintiffs who prudently asked for pre-distribution 
approval of the leaflet reproduced above rather than 
risk post-distribution filing and were given a belated 
denial.

IV. Conclusion
The district court misused its discretion under Rule 

23(d) and violated the constitutional rights of plaintiffs’ 
counsel, named plaintiffs and all other actual or poten
tial members of the class by entering the orders. I dis
sent from Part IV of the majority opinion and would 
vacate the district court’s order as modified.

JAMES C, HILL, Circuit Judge, specially concurring:

Being bound by the prior decisions of this Court, as 
I ought to be, I concur. Beker Phosphate Corp. v. Muir- 
head, 581 F.2d 1187, 1190 n. 10 (5th Cir. 1978).

My observations concerning the path upon which we 
embarked in Zambuto v. American Telephone and Tele
graph Co., 544 F.2d 1333 (5th Cir. 1977) are set out 
in my dissent to the opinion for the En Banc Court in 
White v. Dallas Independent School District, 581 F.2d 
556, 563 (5th Cir. 1978) (Hill, J., concurring in part 
and dissenting in part).

w ould be  un tenab le . I t  is no t necessary  to  d isobey a  co u rt o rder 
to  be ab le  to  m ake a  chilling  effect a t ta c k  on it. Indeed , th e  exact 
opposite is norm ally  requ ired . A  p a r ty  m ay  no t vio late a  co u rt order 
an d  then  in  a  con tem p t proceeding for v io la ting  th e  order challenge 
its  constitu tionality . Walker v. City of Birmingham, 388 U .S. 307, 
316-17, 87 S .C t. 1824, 1830, 18 L .E d .2 d  1210, 1217 (1 967 ).



229

Wesley P. BERNARD et al.,
Plain tiffs-Appellants,

v.
GULF OIL COMPANY et al., 

Defendants-Appellees.

No. 77-1502

UNITED STATES COURT OF APPEALS 
Fifth Circuit.

Sept. 27, 1979.

Appeal from United States District Court, Eastern 
District of Texas; Joe J. Fisher, District Judge.

Ulysses Gene Thibodeaux, Lake Charles, La., Barry 
L. Goldstein, Washington, D. C., Jack Greenberg, Patrick 
O. Patterson, New York City, for plaintiffs-appellants.

William H. Ng, Joseph T. Eddins, Assoc. Gen. Coun
sel, Charles L. Reischel, Asst. Gen. Counsel, Equal Em
ployment Opportunity Commission, Washington, D. C., 
amicus curiae, for E.E.O.C.

Joseph H. Sperry, Wm. G. Duck, Kathleen M. Civins, 
Susan R. Sewell, U. S. Jones, Houston, Tex., for Gulf 
Oil.

Carl A. Parker, Port Arthur, Tex., for Oil, Chemical 
& Atomic Workers, Etc.

Michael D. Murphy, Port Arthur, Tex., for appellees.



230

ON PETITION FOR REHEARING AND 
PETITION FOR REHEARING 

EN BANC.

(Opinion June 15, 1979, 5 Cir., 1979, 596 F.2d 1249).

Before BROWN, Chief Judge, COLEMAN, GOD- 
BOLD, CLARK, RONEY, GEE, T.IOFLAT, HILL, 
FAY, RUBIN, VANCE, KRAVITCH, JOHNSON, 
GARZA, HENDERSON, REAVLEY, P O L I T Z , 
HATCHETT, ANDERSON and RANDALL, Circuit 
Judges.*

BY THE COURT:

A member of the Court in active service having re
quested a poll on the application for rehearing en banc 
and a majority of the judges in active service having 
voted in favor of granting a rehearing en banc,

IT IS ORDERED that the cause shall be reheard by 
the Court en banc with oral argument on a date hereafter 
to be fixed. The Clerk will specify a briefing schedule 
for the filing of supplemental briefs.

* Judges G oldberg an d  A insw orth  have recused them selves and  
d id  no t p a rticp a te  in  th is  decision.



231

Wesley P. BERNARD et al., 
Plaintiffs-Appellants,

v.
GULF OIL COMPANY et al.,

Defendants-Appellees.

No. 77-1502

UNITED STATES COURT OF APPEALS 
Fifth Circuit.

June 19, 1980.

Employment discrimination suit was brought against 
employer and unions based on allegation that the em
ployer and the unions had discriminated against plain
tiffs and similarly situated black employees in violation 
of federal law. The United States District Court for the 
Eastern District of Texas, Joe J. Fisher, Chief Judge, 
entered an order prohibiting the parties and their counsel 
from communicating with potential class members with
out court approval and later granted defendants’ motions 
for summary judgment. Plaintiffs appealed, and the Court 
of Appeals, 596 F.2d 1249, reversed and remanded. There
after, the Court of Appeals, 604 F.2d 449, granted a 
rehearing en banc. The Court of Appeals, en banc, God- 
bold, Circuit Judge, adopted Parts I, II and III of the 
panel opinion and held that: (1) the district court’s order 
which broadly restricted communication by parties and 
their counsel with actual and potential class members 
was an unconstitutional prior restraint of speech; (2) 
the order would be unconstitutional even if it were tested



232

under the more relaxed standards applicable to subse
quent restraints on speech; and (3) the order was not 
an “appropriate order” within the meaning of the class 
action rule.

Order of district court vacated and judgment of district 
court reversed and remanded.

Tjoflat, Circuit Judge, concurred in the result and 
filed opinion in which Brown, Gee, Henderson and Reav- 
ley. Circuit Judges, joined.

Fay, Circuit Judge, filed specially concurring state
ment in which Coleman, Chief Judge, and Roney, Circuit 
Judge joined.

James C. Hill, Circuit Judge, dissented and filed 
opinion.

* * *

Ulysses Gene Thibodeaux, Lake Charles, La., Barry 
L. Goldstein, Washington, D. C., Jack Greenberg, Patrick 
O. Patterson, New York City, for plain tiff s-appellants.

William H. Ng, Atty., Joseph T. Eddins, Jr., Assoc. 
Gen. Counsel, Charles L. Reischel, Asst. Gen. Counsel, 
Susan B. Reilly, Lutz A. Prager, Equal Employment Op
portunity Commission, Washington, D. C., Carol E. 
Heckman, Jessica Dunsay Silver, Drew S. Days, III, Asst. 
Atty. Gen., Appellate Sec., Civil Rights Div., Dept, of 
Justice, Washington, D. C., amicus curiae, for E.E.O.C.

Wm. G. Duck, Susan R. Sewell, U. S. Jones, Houston, 
Tex., for Gulf Oil.

Michael D. Murphy, Port Arthur, Tex., for Oil, Chemi
cal & Atomic Workers, Etc.



233

John D. Buchanan, Jr., Tallahassee, Fla., William 
F. Kaspers, Atlanta, Ga., for amicus Tallahassee Me
morial Hospital.

Appeal from the United States District Court for the 
Eastern District of Texas.

Before COLEMAN, Chief Judge, BROWN, GOD- 
BOLD, RONEY, GEE, TJOFLAT, HILL, FAY, RU
BIN, VANCE, KRAVITCH, FRANK M. JOHNSON, 
Jr., GARZA, HENDERSON, REAVLEY, POLITZ, 
HATCHETT, ANDERSON, RANDALL, TATE, SAM 
D. JOHNSON and THOMAS A. CLARK, Circuit 
Judges.*

GODBOLD, Circuit Judge:
This suit was brought as a class action by six present 

or retired black employees of the Port Arthur, Texas, 
plant of Gulf Oil Company, under Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. § 2000e-2) and 42 U.S.C. 
§ 1981. The members of the asserted class are black em
ployees and black former employees of the Port Arthur 
plant, and black applicants rejected for employment with 
Gulf Oil (at the Port Arthur plant and elsewhere). The 
defendants are Gulf Oil and the Oil, Chemical and Ato
mic Workers’ Union.

Plaintiffs charged that Gulf discriminated against 
blacks in hiring, job assignments, pay scales, discipline 
and discharge, employed discriminatory tests and racially 
tainted promotion and progression practices, and denied

* Judges G oldberg, A insw orth  an d  C harles C lark  d id  n o t p a r 
tic ipa te  in  th e  consideration  or decision of th is  case.



234

training to blacks and refused seniority to blacks. They 
alleged that the union had agreed to, acquiesced in or 
condoned Gulf’s discriminatory practices. The district 
court dismissed the Title VII claim as untimely filed, 
granted summary judgment for defendants on the § 1981 
claim, and applied laches as an additional ground for 
its disposition of both claims. With respect to these three 
holdings, we adopt parts I, II, and III of the panel opin
ion1 and reverse and remand to the district court. A 
fourth issue we will consider at length. It concerns the 
validity of an order of the district court restricting com
munications by named plaintiffs and their counsel with 
actual and potential class members not formal parties to 
the suit. By a divided vote the panel found the order 
valid. 596 F.2d at 1258. We hold that the order violated 
the First Amendment to the Constitution and Rule 23, 
Fed.R.Civ.P.

I. The background
The facts are accurately stated in the dissenting opinion 

to the panel decision, 596 F.2d at 1262-76, and the court 
adopts that statement. We restate the facts in condensed 
form.

In April 1976, Gulf and EEOC entered into an extra
judicial conciliation agreement covering alleged racial 
discrimination against blacks at the Port Arthur plant 
and providing for conciliation of alleged discriminatory 
practices and for back pay to 614 present and former black 
employees. No employees were parties to the agreement.

1. Bernard v. Gulf Oil Co,, 596 F .2d  1249, vacated, 604 F .2d 
449 (5 th  C ir. 1979).



235

Plaintiffs brought this suit in May, 1976, represented by 
local counsel in association with New York attorneys 
from the NAACP Legal Defense and Education Fund. 
Before answering and before a class was certified, iGulf

J ijed an..uma'Qlil.request that the court enter an 'order
limiting communication by parties a i^  Thê ir couns'el with" 

-adaaL-Or potential class members,j Gulf asserted that it 
had received reports that one of plaintiffs’ attorneys had 
attended a meeting of actual and potential class members 
and had advised the group not to sign receipts and re
leases sent to them pursuant to the "conciliation agree* 
ment because he cduig~recover twice as much for them 
in the suit just filed.

District Judge Steger entered a temporary order on 
May 287 Gulf filed an additional unsworn charge that 
the same plaintiffs’ attorney had also recommended that 
employees who had already signed receipts and releases 
should return their checks. Gulf also filed an affidavit 
from EEOC which stated that the issues in the suit were 
almost identical to those embraced in the conciliation 
agreement.

Plaintiffs challenged the constitutionality of the tem
porary order. They filed affidavits denying Gulf’s charges 
and a brief asserting that numerous issues in the suit were 
not within the matters conciliated. On June 22, without 
proof of the unsworn charges made by Gulf and without 
entering findings of fact. Chief District Judge Fisher re
jected plaintiffs’ constitutional arguments and entered a 
modified order explicitly modeled on that suggested in 
the Manual for Complex Litigation, Part II, § 1.41 (1973 2

2. I t  is su b stan tia lly  th e  sam e as U 2 of th e  m odified order. See 
n. 4  infra.



236

eel.),3 a publication widely used by federal judges. It is 
the validity of this modified order that is now before us.

On July _6 plaintiffs moved for permission for them
selves and their counsel to communicate with members 
of the proposed class and also asked for guidance from 
the court. They attached a notice, reproduced at 596 
F.2d 1266, which they proposed to distribute and as
serted that they were constitutionally entitled to distrib
ute. The notice alerted black employees to the existence 
of the lawsuit as an alternative to acceptance of Gulf’s 
conciliation offer and urged them to talk to an attorney. 
The time for acceptance of Gulf’s conciliation offer ex- 
pired on or about August 8. On August 10, the court, 
without explanation, denied plaintiffs’ nmtionby a orie- 
sentence order.

II. The provisions of the order
The order, described by plaintiffs as a “gag order,” is 

broad in scope and plenary in nature, forbidding a wide 
range of communications,4

3. T h e  form  of th e  suggested o rder is th e  sam e in. th e  1977 
ed ition  of th e  Manual.

T h e  1977 ed ition  also  appears a t  1 P t. 2 M oore’s F edera l P ra c 
tice, P a r t  I I ,  jf 1.41, a t  226-28 (2 d  ed. 1979) and  W rig h t & M iller, 
Manual for Complex Litigation, P a r t  I I ,  § 1.41 a t  188-89 (1 9 7 7 ).

4. The order, as modified, provided:
I T  IS  O R D E R E D :
(1 )  T h a t  G u lf’s m otion to  m odify  Ju d g e  S teger’s  O rder d a ted  

M ay  28, 1976 is g ran ted ;
(2 )  T h a t  Ju d g e  S teger’s O rder d a ted  M ay  28, 1976 be  m odi

fied so as to  read  as follows:
In  th is ac tion , a ll p arties  hereto  a n d th e ir  counsel a re  for- 

bidden d irec tly  o r ind irec tly , o ra lly  o r in  w riting , to  com m uni
ca te  concerning SUC5~actTon w ith  a n T  Po ien tlaT T r  ac tu a l class" 
m em ber no t a  form al p a r ty  to  th e  ac tion  w ithou t  the consen t

""and approval of th e  proposed com m u n icaB a tT T jiT ~ p ro p o ie3 ’



237

The persons enjoined are “all parties hereto and their 
counsel.”

addressees by  o rder of th is  C ourt. A ny  such proposed  com m uni
ca tion  shall be p resen ted to  th is  C o u rt in  w riting  w ith  a  desig- 
n a d o n jp f  o r Ins c r ip t io n )  of all addressees an d  w ith  a motion^ an a  

^ p ropos e d T r c fe rT o r p n or "approvaT by th is  C ourt of  th e  proposed 
com m unication . T h e  com m unications forbidden* by  th is order 
include, b u t a re  n o t lim ited  to . ( a )  so lic ita tion  d irec tly  or in 
d irec tly  o f legal rep resen ta tion  of p o ten tia l an d  ac tua l class 
m em bers w ho"a re~ noF  lo rm a T p a rtie s  to  th e  class ac tio n ; (b )  
so lic ita tion  of fees and  expenses^ and  ag reem en ts to  p ay  fees 

"an d  expenses from  p o ten tia l and  ac tua l class m em bers w ho a re  
n o t form al p a rtie s  to  th e  class ac tio n ; (c) so lic ita tion  b y  
form al parties  to  th e  class ac tion  of requests by  class m em bers 
to  o p t o u tdo, class actions u nder su b p arag rap h  ( b ) ( 3 )  of R u le  
23, F . R . C iv. P .;  and  (d )  com m unications from  counsel or a  

.p a r ty  w hich  m ay  tend  to  m isrepresen t th e  s ta tu s , purposes and  
effects of th e  class jE S c jS ra n c ^ ^

*' o rd ers* the re in  w hich m ay  a Ta t e T m b ^  w ithout
cause, to  reflect adye£ § d y .-m ^u ac4 3 a5 ^ ^

~̂ O T A M S m m is tra tio n  of ju stice .!T he  obligations and  p ro h ib itio n s ' 
of th is  o rder are_noj..ex.dusiy£, All o the r e th ical, legal and  equ i
tab le  ob ligations a re  unaffected by  th is  order.

T h is  o rder does no t fo rb id  (1 )  com m unications betw een an  
a tto rn ey  an d  his client o r a  p rospective client, who has on th e  
in itia tiv e  of th e  c lien t or p rospec tive c lien t consulted  w ith , em - 
p lo y e T T F p ro p o se d  to  em ploy th e  a tto rn ey , o r (2 )  com m unica
tions occurring  in  the  regu la r course of business or in th e  p e r
form ance of th e  d u ties*of a~laublic~offi~ce or agency (such as the 

"A ttorney G enera l) w hich do  n o t have  th e  effect  of solic iting 
rep resen ta tion  b y  coTm seU 'br m isrep resen ting  th e  s ta tu s! p u r
poses o r effect of the  ac tion  and  o rd e fF th e re in .
. If any party or counsel for a party asserts a constitutional 

right to communicate with any member of the class without. 
..Plisr.. restraint and does so communicate pursuant to th a t  
-assertecLxight, he shaTTwitESTfive days after such rommunica; 
_tion file with the Court a copy of such communication, if in 
writing, or an accurate and substantially complete summary of 
"the communication if oral. “ ~  — —*"~ ~— ---- •

(3 ) T h a t  G ulf be allowed to  proceed w ith  th e  p ay m en t of 
back  p a y  aw ards an d  the  ob tain ing  of receip ts and  releases from  
those em ployees covered by  th e  C onciliation  A greem ent d a ted  
A pril 14, 1976, betw een G ulf, th e  U .S. E q u a l E m ploym ent O p
p o rtu n ity  Com m ission an d  th e  Office for E q u a l O pportun ity , 
U .S. D ep a rtm en t of th e  In te r io r ; T h a t th e  p r iv a te  se ttlem en t



238

The subject matter forbidden is communications with 
any actual or potential class member not a formal party,

of charges th a t  th e  em ployer h a s  v io la ted  T itle  V II  is to  be 
encouraged, United States v. Allegheny-Ludlum Industries, Inc.., 
S17 F .2d  826 (S th  C ir. 1975), cert, denied, 425 U .S . 944, 96
S .C t. 1684, 48 L .E d .2d  187 (1 9 7 6 ).

(4 ) T h a t  th e  C lerk  of th e  C o u rt m ail a  notice to  all em 
ployees o t Q uit a F  its  P o r t  A rth u r R efinery  w E T ^ re ~ c o v e fe ?  

'b y  the" C onciliation~2?ireem enTriu»r~w^ signecTrecelpfs-
~Tnc^ 7 e le a ^ S o r ba.ck^iiayawalrd^
(45  flavs from  th e  date  of th e  C leiT ’s H n o la c ^  

as p rovided T o T ^ ^ T F T b n c i I I i t i o n  A greernent o r sucK~oHeF 
will expire u n til fu rth e r  o rder of th e  C ou rt;

(5 ) T h a t  th e  co n ten ts  o f th e  no tice  be th e  sam e a s  th a t  set 
ou t in  A ppendix I ;

(6 ) T h a t  G ulf bear th e  expense of m ailing  th e  no tice  an d  a 
copy of th e  C o u rt’s o rder to  th e  ind iv iduals covered b y  item  (4 ) 
above;

(7 )  T h a t  all em ployees w ho have delivered  receip ts and  re 
leases I o T I u ] T ^ n y ^ " 'B e f m e 2 I 3 iy T S o m 3 E e ”S H T H tE e T i le r k ,s 

"notice shall be deem ed to  hav e  a c c e p te d ^ T e  ofter as
~mTKe ConaTTalion^^rccnient;

(8 ) T h a t  any  fu rth e r com m unication , e ith er d irec t o r in 
d irect, o ral or in  w riting  (o th e r th a n  those  perm itted  p u rsu an t 
to  p a rag rap h  (2 )  above) from  the  nam ed parties, th e ir  rep re
sen ta tives or counsel to  th e  po ten tia l o r ac tu a l class m em bers 
n o t form al parties  to  th is  ac tion  is fo rb idden ;

(9 ) T h a t G ulf in form  th e  C o u rt 65 d ay s  from  th e  d a te  of 
th e  C lerk ’s notice to  be  sen t b y  th e  C lerk of the C o u rt of the 
nam es of po ten tia l o r ac tua l class m em bers who have accepted  
th e  offer of b ack  p ay  an d  signed receip ts and  releases p u rsu an t 
to  th e  C oncilia tion  A greem ent and  th e  nam es of those w ho have 
refused or failed to  respond.

I t  is P la in tiff’s con ten tion  th a t  an y  such provisions as here in 
before s ta ted  th a t  lim it com m unication  w ith  p o ten tia l class 
m em bers are  co n s titu tionally  invalid , c iting  Rodgers v. United 
States Steel Corporation, 508 F .2d  152 (3 rd  C ir. 1975), cert, 
denied, 420 U .S. 969, 95 S .C t. 1386, 43 L .E d .2d  649 (1 9 7 5 ). 
T h is  C ourt finds th a t  th e  Rodgers case is inapplicable , and  th a t  
th is  orHer com ports w ith  th e  requisites se t o u t in' th e  Manual 
for Complex Litigation, Section 1.41, p . 106 C C H  E d ition  
1973, w hich specifically exem pts constitu tio n a lly pro tec ied  cpin-_ 
m unicaR on w hen the, substance  of such com m unication  is filed*

‘̂ IOrQTeT!burt.__,
Bernar3~v7IIulJ~Oil Co., supra, 596 F .2 d  a t  1258 n. 9.



239

“concerning [this] action . . . without the consent and 
approval of the proposed communication and proposed 
addressees by order of this Court.” More specific com
munications that the proscription includes, but is not 
limited to, are: fa] solicitation of legal representation of 
potential and actual class members not formal parties; 
(b) solicitation of fees and expenses; (c) solicitation of 
requests by class memoers to opfout; and (d) “communi
cations from counsel or a party which may tend to mis
represent the status, purposes and effects of the class 
action, and of any actual or potential Court orders therein 
which may create impressions tending, without cause, to 
reflect adversely on any party, anv counsel, this Court. 
or the administration of justice

The means of communication forbidden are “directly 
or indirectly, orally or in writing.”

The order contains several exceptions, set out in the 
second subparagraph of f  (2): communications between 
attorney and client, and between attorney and prospective 
client, when initiated by the prospective client, and com
munications in the the regular course of business.

The third subparagraph of f  (2) is a much-debated 
provision requiring post-communication filing with the 
court of any communication asserted to be constitution
ally protected;

If any party or counsel for a party asserts a con
stitutional right to communicate with any member 
of the class without prior restraint and does so com
municate pursuant to that asserted right, he shall 
within five days after such communication file with 
the Court a copy of such communication, if in writ
ing, or an accurate and substantially complete sum
mary of the communication if oral.



240

The order also contains a provision that the clerk of 
the district court send a notice to those employees covered 
by the conciliation agreement who have not signed re
ceipts and releases for back pay. The notice, which is 
an appendix to the order, tells the employee that this 
case is pending, and briefly describes it, and that he has 
been identified as an actual or potential class member. It 
describes the outstanding conciliation offer from Gulf 
and tells the employee that he has a choice of accepting 
the Gulf offer or declining it and being considered at a 
later date for inclusion in the class in the suit. Employees 
are told they have 45 days in which to accept the con
ciliation offer.

III. The basis for the order
Presumably, since the district court made no findings, 

its order was based upon suggestions contained in the 
Manual, which recommends that procedures be devised 
to anticipate and prevent potential abuses in class actions, 
including solicitation of representation, solicitation of 
funds and of opt-out requests, and misrepresentations that 
may create confusion and reflect adversely on the court 
or the administration of justice. Manual, Part I, § 1.41. 
The Manual recommends that district courts adopt local 
rules imposing “in every potential and actual class ac
tion” substantially the ban on communication that is here 
involved, and in the absence of a local rule5 impose the 
ban by an order entered promptly after the filing of any 
actual or potential class action. Id. Part I, § 1.41; Part 
II, § 1.41 (Suggested Local Rule 7 and Suggested Pre

5. T h e  d is tric t co u rt here involved h ad  n o t adop ted  a  local rule.



241

trial Order No. 15).6 7 8 Our interpretation of the basis for 
the court’s order is reinforced by the court’s rejection 
of plaintiffs’ constitutional arguments on the ground that 
the order it had entered comported with the require
ments of the Manual.

We can assume that the district court did not ground its 
order on a conclusion that the chargeT~oFlmsTOnduct 
made by Gulf were true. Nothing in its order indicates 
that it did, and, if it did, such a conclusion would have_ 
been procedurallv improper and without evidentiary sup
port. Rather the court appears to have acted upon the ra
tionale of the Manual that the court has the power to 
enter a ban on communications in any actual or potential 
class action as a prophylactic measure against potential 
abuses envisioned by the Manual.7 "

IV. The order is a prior restraint
The order represents a significant restriction on First 

Amendment rights. Because no other court of appeals 
has ruled on the constitutionality8 of the Manual’s sug

6. T h e  only  significant difference betw een th e  suggested local 
ru le  an d  th e  suggested p re tr ia l o rder is th e  w ording of th e  ru le ’s 
“ constitu tional r ig h t” exception. T he  suggested ru le  prov ides: “N o r 
does the  ru le fo rb id  com m unications p ro tec ted  by  a  constitu tional 
r ig h t.” I t  th en  im poses th e  sam e post-com m unication  filing requ ire
m ents th a t  th e  order does. W hile we here  consider the co nstitu tionality  
of th e  Manual’s suggested order, m uch of ou r analysis is equally  
app licab le  to  the suggested local rule. See n. 22 infra. T h e  sem antic 
change does n o t a lte r  th e  th ru s t of th e  rule.

7. T h e  panel m a jo rity  in te rp re ted  th e  d is tric t co u r t’s ac tion  as 
we do. I t  trea ted  G ulf’s charges as irre levan t and  considered th a t  the 
d is tr ic t co u rt h ad  p lenary  pow er in a  class ac tion  to  b an  com m uni
ca tions by  a  p rop h y la tic  order. S96 F .2d  a t  1261 n. 14.

8. In  197S th e  T h ird  C ircu it raised  th e  constitu tional issue and  
expressed its  doub ts ab o u t th e  pow er of th e  d is tric t co u rt to  im pose



242

gested rule and order, and because of the broad impact

a  p rio r re s tra in t on com m unication  o r association  in  Rodgers v. 
U. S. Steel Corp., 508 F .2 d  152 (3 d  C ir .) ,  cert, denied, 423 U.S. 
832, 96 S .C t. 54, 46 L .E d .2 d  50 (1975) (Rodgers I):

T h e  im position  of such  a  cond ition  [prior approval] upon 
access to  th e  R u le 23 p rocedura l device certa in ly  raises serious 
firs t am endm ent issues. See New Jersey State Lottery Comm’n 
v. United States, 491 F .2 d  219 (3 d  C ir .) ,  cert, granted, 417 
U.S. 907, 94 S .C t. 2603, 41 L .E d .2 d  211 (1 9 7 4 ). T h e re  is no 
question  b u t th a t  im p o rta n t speech an d  associational r ig h ts  a re  
involved in  th is  effort by  th e  N A A C P  L egal D efense a n d  E d u 
ca tion  F u n d , Incc. to  com m unicate w ith  po ten tia l b lack  class 
m em bers on  w hose behalf th ey  seek to  litig a te  issues of rac ial 
d iscrim ination . See, e. g., United Transportation Union v. State 
Bar, 401 U .S. 576, 91 S .C t. 1076, 28 L .E d .2 d  339 (1 9 7 1 ); 
NAACP v. Button, 371 U .S . 415, 83 S .C t. 328, 9 L .E d .2 d  405 
(1 9 6 3 ). A nd th e  in te res t of th e  ju d ic ia ry  in  th e  p ro p er adm in is
tra tio n  of ju s tice  does n o t au th o rize  an y  b lan k e t exception  to  
th e  firs t am endm ent. See Wood v. Georgia, 370 U .S. 375, 82 
S .C t. 1364, 8 L .E d ,2 d  569 (1 9 6 2 ); Craig v. Harney, 331 U.S. 
367, 67 S .C t. 1249, 91 L .E d . 1546 (1 9 4 7 ); Pennekamp v. 
Florida, 328 U .S. 331, 66 S .C t. 1029, 90 L .E d . 1295 (1 9 4 6 ); 
Bridges v. California, 314 U .S. 252, 62 S .C t. 190, 86 L .E d . 192 
(1 9 4 1 ). W ha tev er m ay  be the  lim its of a  c o u r t’s pow ers in  th is 
respect, i t  seem s clear th a t  th e y  d im in ish  in  s tren g th  as th e  
expressions an d  associations sough t to  b e  contro lled  m ove from  
th e  courtroom  to  th e  ou tside  w orld. See T . E m erson , T he  
System  of F reedom  of E xpression  449 e t seq. (1 9 7 0 ).

ajc sjc sjc sje sjc

[T ]h e  com m ittee w hich d ra fted  th e  Manual probab ly  w en t too 
fa r  in  its  a p p a ren t assum ption  th a t  Craig v. Harney, supra, an d  
Bridges v. California, supra, w ould p erm it th e  vesting  of un- 
review able d iscre tion  in  a  d is tric t court to  im pose a  p rio r re 
s tra in t on  com m unication  or association . 1 J . M oore, supra, a t  
29 n. 28.

508 F .2d  a t  162-63, 165. H ow ever, th e  T h ird  C ircu it elected  to  
proceed on a  s ta tu to ry  ground , an d  no c ircu it h a s  since d irec tly  con
fron ted  th e  constitu tional issue.

T h e  Second C ircu it, in  Weight Watchers of Philadelphia, Inc. v. 
Weight Watchers International, Inc., 455 F .2 d  770 (2d  C ir. 1972), 
rested  its  refusal to  overtu rn  a  sim ilar res tr ic tio n  on th e  unreview 
ab ility  o f d isc re tionary  o rders by  w rit of m andam us, an d  th u s  did 
n o t deal w ith  th e  constitu tiona lity  of th e  order.

T h e  1977 ed ition  of th e  Manual adhered  to  th e  position  of th e  
1973 edition . T h e  1978 Supplem ent review s th e  div ision  in  th e



243

of the Manual’s suggestions,B we address the constitu
tional issues before us.

[1] We hold that the order entered in this case is an 
unconstitutional prior restraint.

[2] Prior restraints on freedom of speech have long 
been disfavored in American law. Near v. Minnesota, 
283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). 
While a prior restraint is not unconstitutional per se, there 
is a heavy presumption against its constitutionality. 
Southeastern Promotions, Ltd. v. Conrad, 420 037 5457 
558-59, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448, 459
(1975); Organization for a Better Austin v. Keefe, 402 
U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1, 5 
(1971). We discuss in Part VI, below, the circumstances 
under which a prior restraint may be held lawful.

[3] Prior restraint has traditionally been defined as a 
“predetermined judicial prohibition restraining specified 
expression. . . . ” Chicago Council of Lawyers v. Bauer, 
522 F.2d 242, 248 (7th Cir. 1975), cert, denied, 427 
U.S. 912, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976); see 
also Nebraska Press Association v. Stuart, 427 U.S. 539, * 111

au th o rities  concerning th e  valid ity  of th e  recom m ended ru le  and  
order, b u t concludes:

[T jh e re  should be  no m odification of th e  foregoing recom m en
dations o r of th e  sam ple ru le  and  o rder based thereon, except 
w hen a  con tro lling  decision of th e  co u rt of appeals of th e  cir
cu it requ ires it.

Id., P a r t  I ,  § 1.41, p . 3.

9. T h e  local ru le  suggested by  th e  Manual h a s  been adop ted  in  
num erous d istric ts . See S .D . F la . R . 19; N .D . Ga. R . 221.2 3- N D
111. R . 22; D . M d. R . 20; M .D . N .C . R . 1 7 ( b ) ( 6 ) ;  S .D . Ohio R . 
3 .9 .4 ; S .D . Tex. R . 6; W .D . W ash. R . 2 3 (g ) . N o  d oub t m any  ban  
orders have also been en tered  independen tly  of local rules, on th e  
suggestion of th e  Manual. See, e. g., NOW v. Minnesota Mining and 
Manuf. Co., 18 F E P  Cas. 1177 (D . M inn . 1977).



244

559, 96 S.Ct. 2791, 2802, 49 L.Ed.2d 683, 697-98
(1976) ; Near v. Minnesota, supra; Litwack, The Doc
trine of Prior Restraint, 12 Harv.C.R.-C.L.Rev. 519, 520
(1977) . This expansive definition has not often been 
further elaborated. There are, however, four separate but 
related features that may serve to distringuish prior re
straints from limitations on free speech imposed by sub
sequent restraints.

[4] 1. Origin. A prior restraint is generally judicial 
rather than legislative in origin, although an enabling sta
tute may authorize the judicial suppression of publica
tion. Near v. Minnesota, supra. The essence of prior re
straint is that it places specific communications under 
the personal censorship of the judge. Kalven, Foreword: 
Even When a Nation is at War, 85 Harv.L.Rev. 3, 33 
(1971) [hereinafter Kalven].10 11

The district court’s order is undeniably judicial in 
origin.11

10. T h e  classic p rio r re s tra in t is an  adm in istra tiv e  licensing scheme 
adop ted  p u rsu an t to  a s ta tu te . T h e  licensor has b road  d iscretion  w ith  re 
g ard  to  each pub lica tion  to  b e  restra ined . See, e. g., Southeastern Pro
motions, Ltd. v. Conrad, 420 U .S, 546, 95 S .C t. 1239, 43 L .E d .2 d  
448 (1 9 7 5 ); Penthouse Int’l, Ltd. v. McAuliffe, 610 F .2d  1353, 
1359-61 (5 th  C ir. 1980). T h e  d istinc tion  betw een  th is  ty p e  of 
schem e and  a  m ore general legisla tive enactm en t is th a t  th e  re s tra in t 
opera tes only  on specific pub lications, chosen b y  th e  adm in istra to r. 
T h ere  is th u s  less room  for d ive rsity  to  exercise its “ tendency  to  
b reak  an d  contro l th e  violence of fac tio n .” T h e  F edera lis t N o . 10 
(M ad iso n ). T h e  sam e danger exists w ith  respect to  jud ic ia l restr ic 
tions on  free speech; indeed, m ost of th e  m ore recen t p rio r re s tra in t 
cases have  involved jud ic ia l ra th e r  th a n  ad m in istra tiv e  licensing. 
See, e. g., Nebraska Press Association v. Stuart, supra; New York 
Times Co. v. U. S., 403 U .S. 713, 91 S .C t. 2140, 29 L .E d .2 d  822 
(1 9 7 1 ).

11. W e need n o t pass on th e  valid ity  of th e  d istinction  m ade by  
th e  S eventh  C ircu it in Chicago Council of Lawyers v. Bauer, supra, 
522 F .2d  a t  248, betw een courts as jud icial bodies an d  courts as



245

2. Purpose. It has been suggested that the sole pur
pose of a prior restraint is suppression rather than punish
ment. Southeastern Promotions, Ltd. v. Conrad, supra, 
420 U.S. at 558-59, 95 S.Ct. at 1246, 43 L.Ed.2d at 
459; Near v. Minnesota, supra, 283 U.S. at 715, 51 
S.Ct, at 630, 75 L.Ed. at 1367. Unlike a criminal statute, 
which by its terms defines the punishment for its viola
tion, a prior restraint “does not deal with punishments; 
it provides for no punishment, except in case of con
tempt for violation of the court’s order, but for sup
pression and injunction, that is, for restraint upon publi
cation.” Near, supra, 283 U.S. at 715, 51 S.Ct. at 631, 
75 L.Ed. at 1367. The justification for drawing a dis
tinction based on this difference is that “a free society 
prefers to punish the few who abuse rights of speech 
after they break the law than to throttle them and all 
others beforehand.” Southeastern Promotions, Ltd. v. 
Conrad, supra, 420 U.S. at 559, 95 S.Ct. at 1246, 43 
L.Ed.2d at 459; see also New York Times Co. v. U. S., 
403 U.S. 713, 733, 91 S.Ct. 2140, 2151, 29 L.Ed.2d 
822, 836 (1971) (White, J., concurring).

Without question, '.the purpose of the order is restraint 
upon publication.  ̂ ~

3. Means of enforcement. This distinction between 
prior and subsequent restraints is inextricably linked to 
the prior restraint’s judicial origin and unique purpose. 
“Punishment by contempt is an important attribute of a 
‘prior restraint’ that distinguishes it from a criminal statute 
that forbids a certain type of expression.” Chicago Coun
cil of Lawyers v. Bauer, supra, 522 F.2d at 248. The

ru lem ak ing  o r quasi-legislative bodies. H ow ever, since th e  in s tan t 
o rder w as prom ulgated  in  th e  course of litigation  an d  n o t as a  local 
ru le, i t  satisfies even th a t  C ircu it’s defin ition  of a  jud ic ia l re s tra in t.



246

penalty is thus both more swiftly imposed and less sub
ject to the mitigating safeguards of the criminal justice 
system than is the punishment for violation of a statute. 
See Nebraska Press Association v. Stuart, supra, 427 U.S. 
at 559, 96 S.Ct. at 2802, 49 L.Ed.2d at 697-98; U. S. 
v. Gurney, 558 F.2d 1202, 1208 (5th Cir. 1977), cert, 
denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed,2d 59
(1978). This lack of safeguards accentuates the dangers 
inherent in any suppression of speech. See Southeastern 
Promotions, Ltd. v. Conrad, supra, 420 U.S. at 559, 95 
S.Ct. at 1246, 43 L.Ed.2d at 459-60; In re Halkin, 598 
F.2d 176, 184, n. 15 (D.C. Cir. 1979).

The expression restrained in this case is not forbidden 
by any statute. The text of the order is silent as to means 
of enforcement,12 and there are other possible means 
available,13 but the appellees accept that the means of 
enforcement intended is the contempt power of the court, 
and we agree.14

The dangers associated with the penalty of contempt 
inhere even though other sanctions are to some extent 
available. Persons subject to the order before us could

12. T h e  Manual is s ilen t also.

13. Possib ly  th e  co u rt could penalize a  p la in tiff a t to rn ey  w ho 
disobeyed th e  o rder b y  rem oving him  as a tto rn ey  for th e  class, or 
deny  or w ithd raw  class ac tion  s ta tu s , Halverson v. Convenient Food 
Mart, Inc., 458 F .2d  927 (7 th  C ir. 1 9 7 2 ); Korn v. Franchard Corp., 
456 F .2d  1206 (2d  C ir. 1 9 7 2 ); Kronenberg v. Hotel Governor 
Clinton, Inc., 281 F .S upp . 622 (S .D . N .Y . 1968), o r rem ove a s  class 
rep resen ta tive  a  p la in tiff w ho disobeyed. S anctions such a s  these 
w ould n o t be available,, how ever, ag a in st d efendan ts  an d  th e ir  
counsel. W ith  respect to  them , con tem pt w ould  seem to  be  th e  only 
ava ilab le  sanction.

14. C on tem pt here  w ould be crim inal because used to  pun ish  
p a s t m isconduct. In re Timmons, 607 F .2d  120, 123-24 (5 th  Cir. 
1979).



247

reasonably conclude that the court’s contempt power ex
tended to enforcement of the order, and the conclusion 
is inescapable that it was exposure to contempt that 
silenced plaintiffs’ attorneys and caused them to ask leave 
of court to send out the notice to class members.15

Moreover, the potential availability of other sanctions 
cannot serve to reduce the constitutional infirmity of the 
order. This prong of the test is concerned primarily with 
the lack of procedural safeguards associated with the en
forcement of prior restraints. iThe fact that contempt is 
jonlv one of several alternative sanctions does not ameli- 
orate this,.concern, y

[5-7] 4. Means of constitutional challenge. While the 
unconsitutionality of a statute may be raised as a defense 
to prosecution for its violation, a litigant who disobeys 
Im jnj unction is precluded from raising its constitutional 
invalidity as a defense in contempt proceedings. Compare 
Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 
935, 22 L.Ed.2d 162 (1969) with Walker v. Birmingham, 
388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967); 
see U. S. v. Dickinson, 465 F.2d 496 (5th Cir. 1972), 
cert, denied, 414 U.S. 979, 94 S.Ct. 270, 38 L.Ed.2d 
223 (1973) (applying rule against collateral attack to 
judicial restriction on publication); cf. In re Timmons, 
607 F.2d 120, 124-25 (5th Cir. 1979) (similar distinc
tion between civil and criminal contempt). Thus, a prior 
restraint may be distinguished from a statute prohibiting

IS . O ne who m ay  be w illing to  vio late a  s ta tu te , and  th u s risk  
crim inal penalties, m ay be less w illing to  a c t in  d irec t defiance of 
an  in ju n c tio n  or co u rt o rder an d  th u s sub jec t him self to th e  co u rt’s 
p o ten tia l con tem p t pow er. See in re Hatkin, supra, S98 F .2 d  a t  184 
n. IS ; Rodgers I, supra, 508 F .2d  a t  161; K alven, supra, 85 H arv . 
L. R ev. a t  34 & n. 156; N o te , 88 H arv . L. R ev. 1911, 1922 (1 9 7 5 ).



248

publication in that the former has “an immediate and 
irreversible sanction. If it can be said that a threat of 
criminal or civil sanctions after publication ‘chills’ speech, 
prior restraint ‘freezes’ it at least for the time.” Nebraska 
Press Association v. Stuart, supra, 427 U.S. at 559, 96 
S.Ct. at 2803, 49 L.Ed.2d at 698. As one commentator 
has eloquently observed: “Prior restraints fall on speech 
with a brutality and a finality all their own. Even if they 
are ultimately lifted they cause irremediable loss—a loss 
in the immediacy, the impact, of speech.” A. Bickel, The 
Morality of Consent 61 (1975), quoted in Nebraska 
Press Association v. Stuart, supra, 427 U.S. at 609, 96 
S.Ct. at 2826, 49 L.Ed.2d at 727 (Brennan, J., con
curring).

The impact of the present order was direct and immedi
ate. It silenced the named plaintiffs and their attorneys 
during the period that Gulf’s conciliation offers were out
standing and putative class members were considering _ 
whether to accents A named plaintiff, questioned by the 
black employee working next to him concerning the suit 
or the relative advantages of conciliation award and suit, 
could not reply. The order cut off dialogue18 despite the 
contentions of plaintiffs’ counsel that some of the issues 
in the suit were not covered by the conciliation agreement 
to which plaintiffs and putative class members were not 
parties and that the conciliation benefits to the putative

16. E xception  (2 )  in  th e  second su b p arag rap h  of (2 )  perm its 
com m unication  betw een a tto rn ey  and  client, a n d  betw een a tto rn ey  
and  prospective c lien t if on the in itia tiv e  of a c lien t o r th e  prospec
tive  client. T h is  p rovision concerning p rospective c lien ts is  largely  
illusory  • presum ably , in  a  class ac tion , a  p rospective c lien t ( class 
m em ber T w ould o ften l e a m  ~qT th e  a f to r n e y l r o m  a  p r e s e n tc l ie n t  

'( f r  u^m^*T7lglHtlHTr ^ u r T i r e  tHe p resen t c I Ie n F ls  fo rbidden to
ta lk  to  th e  p rospective client*

A



249

class were inadequate. It stopped investigation and dis
covery at a time when it is critical, just after suit has 
been filed.

s Fragile First Amendment rights are often lost or pre
judiced by delay. ^Nebraska Press Association v. Stuart, 
supra, 427 U.S. at 609, 96 S.Ct. at 2826, 49 L.Ed,2d at 
727 (Brennan, J., concurring); Zwickler v. Kooto, 389 
U.S. 241, 252, 88 S.Ct. 391, 397, 19 L,Ed.2d 444, 452 
(1967); Collin v. Smith, 578 F.2d 1197, 1209 (7th 
Cir.), cert, denied, 439 U.S. 916, 99 S.Ct. 291, 58 L.Ed. 
2d 264 (1978); A Quaker Action Group v. Hickel, 421 
F.2d 1111, 1116 (D.C. Cir. 1969); Barnett, The Puzzle 
of Prior Restraints, 29 Stan.L.Rev. 539, 545 (1977). 
Courts have therefore been commendably willing to ex
pedite proceedings involving First Amendment rights. See 
New York Times Co. v. U. S., supra, (Supreme Court 
decision issued 15 days after first TRO, 17 days after 
initial publication). Here^during the pendency of the con
ciliation offer, potential class membeFsTwere substantially 
deDrived^ofll^^ with the attorneys
'presumably’mosrknowledgeable, concerning whether they 
FhouId~accept Gulfs offer or look to the suit for redress. 
"AtTFe tiffieTKeylnost needed counsel they werFEuToif 
from the attorneys most available until the time to make a 
choice had expired.17 18

The ban on communications is especially egregious 
both because this is a race discrimination case and be
cause the counsel silenced without factual showing include

17. See n. 16 supra.
18. T h e  im pact of th e  re s tra in t in  th is  case is exacerbated  b y  the  

inev itab le  delay  associated  w ith  appe lla te  litigation . T h e  court en 
banc  decides th is  case alm ost four years a f te r  th e  b an  on com m uni
ca tions w as en tered .



250

those from the Legal Defense Fund, recognized by the 
Supreme Court as having “a corporate reputation for 
expertness in presenting and arguing the difficult ques
tions of law that frequently arise in civil rights litigation,” 
NAACP v. Button, 371 U.S. 415, 422, 83 S.Ct. 328, 332, 
9 L.Ed.2d 405, 411-12 (1963), and engaged in “a differ
ent matter from the oppressive, malicious, or avaricious 
use of the legal process for private gain.” Id. at 443, 83 
S.Ct. at 343, 9 L.Ed.2d at 424. See also Miller v. Amuse
ment Enterprises, Inc., 426 F.2d 534, 539 n.14 (5th 
Cir. 1970).

Faced with the principle that one who violates an in
junction may not raise unconstitutionality as a defense 
in contempt proceedings, appellees construe the order to 
permit a defense to contempt. The constitutionally pro
tected status of the proposed communication or the com- 
municator’s good faith belief in that status, appellees 
argue, would constitute a defense to contempt. This quali
fied defense is not found within the order but was read 
into it by the panel majority. 596 F.2d at 1261.

Even if this construction is correct, the defense is so 
freighted with preconditions and uncertainties that it is 
little comfort to attorney or party. Under appellees’ con
struction, tlte jilingj^qu^^
tion of constitutionality, or good faith belief in constitu
tionality, as a defense.19 Indeed it is only by the vehicle 
of the filing requirement that appellees read into the order 
a defense not otherwise available in a contempt case.20

19. , I t  is not  contended  th a t  th e  ac t o f filing is an  abso lu te
d e fe n s f  to  purpose in en tering  an  ~
“O T derliT tE such a  m eaning.

20. F acia lly  th e  filing requ irem en t is no th ing  m ore th a n  a  m eans 
of no tice  to  th e  court, un re la ted  to  a  defense of contem pt. N o  one 
advances th is  in te rp re ta tio n , an d  w e d o u b t i t  w as in tended .



251

The filing reauiremeut..itself..chi 1In expression. With re
spect to the individual class members, filing within five 
days a “completê summary” of every oral communication 
about the case had by each class member with any of his 
black fellow employees, is a practical impossibility. Be
yond that, knowledge of what may be constitutionally pro
tected is not readily available to the usual employee. In 
a real sense, for the individual plaintiffs silence is the only 
alternative. An attorney will have the knowledge, and 
better means, to file reports with the court as required, 
but if he asserts that he is constitutionally entitled to talk 
with prospective clients, ask financial aid, or seek support 
from a group or the community, filing will be a substan
tial burden. An attorney claiming a constitutional right 
to talk with witnesses could find compliance well nigh 
impossible. Also, the filing requirement arguably runs 
afoul of the attorneys’ work product rule of Hickman v. 
Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451" 
”(1947).

The conditional defense is accompanied by a second, 
chilling effect, the risk of trial on criminal contempt charges, 
with guilt or innocence possibly turning on whether one’s 
assertion of constitutional protection has been made in 
“good faith.” Moreover, the omissions and ambiguities of 
the order and possible differing constructions as to when 
if at all, one is protected against contempt, accentuate 
the chilling effect.21

21. F o r  exam ple, in  add ition  to  th e  general b an  on com m unica
tions, su b p arag rap h  ( a )  of If (2 ) expressly fo rb ids so lic ita tion . P ru - 
d en t counsel v ery  well m ay  conclude th a t  he  canno t sa fe ly  r ely, u pon  
assarting  co nstitu tional p ro tec tion  in  th e  face of thia-SDecific ban—  
ITT E ere is ar^,̂ ’o T la i th T rd e T a T s e I Z S f ^ ^ H J te  in  good fa ith  if he 
does w h a t he  is expressly  ordered  n o t to  do? As one com m entator 
has no ted :

T h e  proviso  exem pting constitu tionally -p ro tec ted  com m unication



252

Most attorneys, faced with an order like the one before 
'us/" would pursue the course chosen by counsel in this 
case and seek prior approval of the court before attempt
ing to communicate with actual or potential class mem
bers., See In re Halkin, supra, 598 F.2d at 184 n.15; 
Goldblum v. National Broadcasting Corp., 584 F,2d 904, 
907 (9th Cir. 1979).

Thus despite the filing provision, and the arguable 
“good faith” defense, the order has the “immediate and 
irreversible” effect of a prior restraint.

V. The expression that is restrained is protected
[8-10] Inquiry does not end with a determination that 

the order constitutes a prior restraint. The First Amend
ment is not absolute, and “the protection even as to pre
vious restraint is not absolutely unlimited.” Near v. Min
nesota, supra, 283 U.S. at 716, 51 S.Ct. at 631, 75 L.Ed. 
at 1367; accord, Times Film Corp. v. Chicago, 365 U.S. 
43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961); Kingsley Books, 
Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 
1469 (1957). Material unequivocally not protectedjby. 
the Constitution may be the subject of a prior,restraioTjjL, 
sufficient procedural safeguards are provided,. This pos
sibility does not exist in the present case because the com
munications proscribed by the order are constitutionally 
protected Also, as discussed in Part VI, below, procedu
ral safeguards are entirely lacking. 22

does n o t elim inate— indeed it  h igh ligh ts— th e  o verb read th  an d  
re su ltan t chilling effect of th e  M a n u a l’s proposed  rule.

N o te , 88 H arv . L . R ev . 1911, 1922 n . 74 (1 9 7 5 ). See also Zarate 
v. Younglove, 22 F E P  C ases 1025, 1042 (C .D . Cal. 1980).

22. T h e  deficiencies a re  p resen t in  b o th  th e  o rder an d  th e  sug
gested  local ru le. See n. 6 supra.



253

The restraint on counsel’s right to talk with potential 
class members about the case is plenary. The restraint 
is not limited to prohibiting solicitation of potential clients. 
The attorneys may not counsel a black employee free of 
any effort to solicit him. We have already noted, at the 
beginning of Part IV, the concern expressed by the Third 
Circuit in Rodgers I, 508 F.2d at 162-63, 165, over the 
constitutional problems raised by conditioning access to 
class action procedures upon prohibiting communications 
between counsel and potential class members.

In addition to the general restraint on attorneys there 
is a specific restriction against solicitation in subpara
graph (a) of f  (2) of the order which forbids “solicita
tion directly or indirectly of legal representation of poten
tial and actual class members who are not formal parties 
to the class action.” NAACP v. Button, supra, and its 
progeny, In re Primus. 436 U.S. 412, 98 S.Ct. 1893, 56 
L.Ed.2d 417 (19781. United Transportation Union v. 
State Bar, 401 U.S. 576, iT lhC t. 1076~ 28 L.Ed.2d 339 
(1971), United M ine Workers v. Illinois Bar Association, 
389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967), and 
Brotherhood of Railroad Trainmen v. Virginia State Bar, 
377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964), 
mandate the conclusion that subparagraph (a) proscribes 
constitutionally protected expression. In Button, the Court 
concluded that NAACP solicitation of persons to bring 
civil rights suits was protected activity under the First and 
Fourteenth amendments. 371 U.S. at 428-29, 83 S.Ct. at 
335, 9 L.Ed.2d at 415.23 The solicitation was treated as 
a mode of political expression effectuated through group 
activity falling with the sphere of associational rights

23. Because this case involves a restriction imposed by a federal 
court, the Fourteenth Amendment is not implicated.



254

guaranteed by the First Amendment. The solicitation 
activities considered in Button included holding meetings 
to explain legal steps needed to achieve desegregation. At 
these meetings forms were circulated which authorized 
Legal Defense Fund attorneys “to represent the signers in 
legal proceedings to achieve desegregation.” 371 U.S. at 
421, 83 S.Ct. at 332, 9 L.Ed.2d at 411.

In view of Gulf’s statements to the trial court and the 
countering affidavit by plaintiffs’ attorney, we do not 
know whether there has been express solicitation in this 
case similar to the distribution of forms in Button. 
Whether plaintiffs’ attorneys’ attendance at the meeting 
was solicitation is not determinative. Here, as in Button, 
the subject matter is racial discrimination. Plaintiffs’ at
torneys are already engaged on behalf of black employees 
in seeking to vindicate their civil rights through court 
action, while in Button they were seeking clients to begin 
a suit. In both cases the activities at issue are those of 
Legal Defense Fund lawyers. The only material difference 
is that here employees must choose between the lawsuit 
and a conciliation offer while in Button there had been 

v no conciliation and offer. The people attending the rneet-
Fund lawyers in Button, 

however, did have to choose between initiating a lawsuit 
and not participating in a lawsuit. The type of choice the 
people would have to make here and in Button is not so 
different that the solicitation that could have occurred in 
this case was outside the scope of activity protected by 
Button. The characteristics of the solicitation that brought 
it within constitutional protection in Button are equally 
present in this case. See also Great Western Cities, Inc. v. 
Einstein, 476 F.Supp. 827 (N.D. 111. 1979) (holding rule



255

similar to district court’s order constitutionally inapplic
able to non-profit solicitation).

The continued vitality of Button was recently affirmed 
by the Supreme Court in In re Primus, supra. There the 
Court reversed a disciplinary reprimand issued against an 
ACLU lawyer for solicitation. The Court considered the 
economic relationship between the lawyer and the person 
solicited, the purpose of the litigation and the possibility 
of a conflict of interest between counsel and prospective 
client. Because the lawyer had no direct financial stake 
in the case, and the case was a means of expressing a 
political belief, and there was no evidence of overreaching 
or misrepresentation, the Court concluded that South 
Carolina’s punishment of Primus for solicitation violated 
her First Amendment rights.24 Counsel for plaintiffs here 
have submitted affidavits attesting to the fact that they 
neither received nor expect to receive from class members 
any compensation for their semces.25'

24. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 98 S.Ct. 
1912, 56 L.Ed.2d 444 (1978), decided the same day as Primus, 
sustained, against constitutional objections, bar sanctions of an at
torney for solicitation. For purely pecuniary gain, he visited in the 
hospital a person injured in an automobile accident and solicited 
her as a client. No political expression or associational rights or 
vindication of illegal racial discrimination was involved. Ohralik 
based his constitutional claim solely on the commercial speech doc
trine. See also Pace v. Florida, 368 So.2d 340 (Fla. 1979); Adler, 
Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 
1175 (Pa. 1978).

25. Thus, subparagraph (b) of jf (2) of the order is not directly 
applicable. Arguably this hypothetical restraint does no injury except 
to the extent it adds to the overall chilling effect. However, it is 
appropriate to comment on it since it is part of the Manual’s form. 
In United Transportation Union v. State Bar, supra, the Supreme 
Court interpreted Button and cases following it to stand for the 
proposition that “collective activity undertaken to obtain meaningful 
access to the courts is a fundamental right within the protection of



256

[11] Of course, the communications of individual 
plaintiffs, also proscribed by the order, are at least equally 
protected. See Brotherhood of Railroad Trainmen v. Vir
ginia State Bar, supra; Great Western Cities, Inc. v. Bin- 
stein, supra.

The communications covered by the order are thus 
protected expressions which call into play the full panoply 
of First Amendment safeguards against prior restraint.28

VI. The prior restraint is not justified

The order in this case is the essence of prior restraint 
—it places specific communications under the personal 
censorship of a judge. It is thus subject to the heavy 
presumption against its constitutionality and the rigid 26

the First Amendment.” Id. at 585, 91 S.Ct. at 1082, 28 L.Ed.2d 
at 347. Tn at least some situations the collection or solicitation of 
.funds to defray litigilaoircoin)^^ 
jnearnngfiTHicais^
~of~Tonstitutional protection''Tn appropriate cases. ' The degree of 
protection would vary according to the use to which the funds are 
to be put. If they are to be used to pay lawyers, the solicitation 
is closer to the heart of gaining access to the courts. See Norris 
v. Colonial Commercial Corp., 77 F.R.D. 672, 673 (S.D. Ohio 1977) 
(solicitation of funds to defray litigation expenses of class action 
permitted with certain requirements imposed on the content of the 
solicitation letter). See also Sayre v. Abraham Lincoln Federal 
Savings & Loan Ass’n, 65 F.R.D. 379, 384-86 (E.D. Pa. 1974), 
modified, 69 F.R.D. 117 (1975); see generally Note, Solicitation 
By Attorneys: A Prediction and a Recommendation, 16 Houston 
L. Rev. 452 (1979).

26. Wn..do_ not discuss at length the plenary pro_yi£ims-_QL.^nlb. 
paragraph (d) of U (2) concerning)stalem.eatLtmdi^
That section merely compounds the unconstitutionally exhibited by 
the preceding sections by adding vagueness and overbreadth to its 

jjefects. See Hirschkop v. Snead, 594 F.2d 356 (4th Cir. 1979) 
(en banc); Zarate v. Younglove, 22 FEP Cases 1025, 1042 (C.D. 
Cal. 1980); V. S. v. Marcano Garcia, 456 F.Supp. 1354 (D. P.R. 
1978); Note, 88 Harv. L. Rev. 1911, 1922 n. 74 (1975).



257

requirements imposed by the courts on those who seek to 
justify prior restraints. It must fit within one of the nar
rowly defined exceptions to the prohibition against prior 
restraints. It must prevent direct, immediate and ir
reparable damage, and it must be the least restrictive 
means of doing so. Finally, it must comport with required 
procedural safeguards. The order at issue meets none of 
these requirements.

[12] There is a strong presumption against the con
stitutionality of any prior restraint, and the burden of 
justification is therefore heavier than that imposed in 
cases involving only subsequent restrictions on freedom 
of expression. Southeastern Promotions, Ltd. v. Conrad, 
supra; New York Times Co. v. U. S., supra; Organization 
for a Better Austin v. Keefe, supra; Bantam Books, Inc. 
v. Sullivan, 372 U.S. 58, 83 S.Q. 631, 9 L.Ed.2d 584 
(1963); Near v. Minnesota, supra; Penthouse Int’l Ltd. 
v. McAuliffe, supra; Universal Amusement Co. v. Vance,
587 F.2d 159 (5th Cir.), aff’d, ___ U.S.___, 100 S.Ct.
1156, 63 L.Ed.2d 413 (1980).

[13] In general, a prior restraint may be justified only 
if the expression sought to be restrained “surely [will] 
result in direct, immediate, and irreparable damage.” 
International Society for Krishna Consciousness v. Eaves, 
601 F.2d 809, 833 (5th Cir. 1979), quoting New York 
Times Co. v. U. S., supra, 403 U.S. at 730, 91 S.Ct. at 
2149, 29 L.Ed.2d at 834. At least three justices may 
have rejected even that standard as overly lenient, with
out explicitly defining the appropriate test. See New York 
Times Co. v. U. S., supra, 403 U.S. at 732-33, 91 S.Ct. 
at 2150-51, 29 L.Ed.2d at 835 (White, J., joined by 
Stewart, J., concurring), and 403 U.S. at 740-41, 91



258

S.Ct. at 2154-55, 29 L.Ed.2d at 840 (Marshall, J., con
curring) .27

[14] To be lawful, the restraint “must fit within one 
of the narrowly defined exceptions to the prohibition 
against prior restraints,” Southeastern Promotions, Ltd. 
v. Conrad, supra, 420 U.S. at 559, 95 S.Ct. at 1247, 43 
L.Ed.2d at 459; that is, “[the] publication [sought to be 
restrained] must inevitably, directly, and immediately 
cause the occurrence of an event kindred to imperiling the 
safety of a transport already at sea . . . .” New York 
Times Co. v. U. S., supra, 403 at 726-27, 91 S.Ct. at 
2148, 29 L.Ed.2d at 832 (Brennan, J., concurring); see 
also Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 
641, 71 L.Ed. 1095, 1106 (1927) (Brandeis, J., con
curring) (“Only an emergency can justify repression”) . 
Indeed, one^ommentator has interpreted New York 
Times v. U.S.  to hold that “there is a constitutional re
quirement that everything, or virtually everything, is en
titled to be published at least once.” Kalven, supra, 85 
Harv.L.Rev. at 34.

[15-17] The order is not brought within any exception 
permitting prior restraints merely because it arises in the 
general context of the administration of justice and the 
particular context of Rule 23. As the Third Circuit noted 
in Rodgers I: “[T]he interest of the judiciary in the proper 
administration of justice does not authorize any blanket 
exception to the first amendment.” 508 F.2d at 163. It 
is obvious that in the conduct of trial the judge restrains

27. Justices Black and Douglas, adhering to their consistent 
rejection of any restriction on freedom of expression, also found 
the standard unacceptable. 403 U.S. at 714, 720, 91 S.Ct. at 2141, 
2144, 29 L.Ed.2d at 82S, 828.



259

expression and association in innumerable ways. But, 
“[w]hatever may be the limits of a court’s powers in this 
respect, it seems clear that they diminish in strength as 
the expressions and associations sought to be controlled 
move from the courtroom to the outside world.” Id.

[18, 19] The Supreme Court has recently reaffirmed 
that even when the competing interest is a criminal de
fendant’s right to a fair trial, “the barriers to prior re
straint remain high and the presumption against its use 
continues intact.” Nebraska Press Association v. Stuart, 
supra, 427 U.S. at 570, 96 S.Ct. at 2808, 49 L.Ed.2d 
at 704. Other courts, including this one, have echoed 
this sentiment. “[B]efore a prior restraint may be im
posed by a judge, even in the interest of assuring a fair 
trial, there must be ‘an imminent, not merely a likely, 
threat to the administration of justice. The danger must 
not be remote or even probable; it must immediately 
imperil.’ ” U. S. v. Columbia Broadcasting System, Inc., 
497 F.2d 102, 104 (5th Cir. 1974). A lawyer’s First 
Amendment right to comment about pending or immi
nent criminal litigation can be proscribed only if his com
ments pose a “ ‘serious and imminent threat’ of inter
ference with the fair administration of justice.” Chicago 
Council of Lawyers v. Bauer, supra, 522 F.2d at 249, 
quoting In re Oliver, 452 F.2d 111 (7th Cir. 1971).

I JSven in the context of a criminal defendant’s right to a 
fair trial, then, prior restraint is “the most serious and 
the least tolerable infringement on First Amendment 

“rightsT^WeBraska Press Association v. Stuart, supra,
U.S. at 559, 96 S.Ct. at 2803, 49 L.Ed.2d at 697.

[20-22] If the exigencies of the Sixth Amendment do 
not lessen the burden on those who seek to justify prior



260

restraints, the interests of a civil litigant cannot do so. 
See Hirschkop v. Snead, supra, 594 F.2d at 373. The 
“interest of the judiciary in the proper administration of 
justice does not authorize any blanket exception to the 
first amendment.” Rodgers 1, supra, 508 F.2d at 163. 
.Thus, the general presumption against prior restraints 
is not mitigated by a claim that the fair and orderly ad
ministration of justice is at stake/**

f23-281 Nor dnes..32ule..23.-..as a specific aspect of the 
administration of justice, create an exception to the

28. We must distinguish two types of cases as only peripherally 
relevant to the inquiry at hand. Craig v. Harney, 331 U.S. 367, 67 
S.Ct. 1249, 91 L.Ed. 1546 (1947), and Bridges v. California, 314 
U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941), and their progeny 
limited the circumstances under which courts may impose contempt 
sanctions for free expression that is subsequently deemed prejudicial 
to the administration of justice. Because the contempt in those cases 
was not based on violation of an explicit order, however, the cases 
“deaTwTtlTproblemFliubs^ those raised by prior
restraint.” Nebraska Press Ass’n v. Stuart, supra, 427 U.S. at 557 
n.5, 96 S.Ct. at 2802, 49 L.Ed.2d at 696 n.5; see also Rodgers v. 
U. S. Steel Corp., 536 F.2d 1001, 1008 n.15 (3d Cir. 1976) (Rodgers 
I I ) ; Schmidt, Nebraska Press Association: An Expansion of Freedom 
and Contraction of Theory, 29 Stan. L. Rev. 431, 472 (1977). Thus, 
tb&JM.anual’s conclusion that Craig and Bridges authorize the sug

gested order, BarTITT 1.41 n.33 (1977 ed.), is mistaken insofar as 
the~or3eFls~ a prior~festfainir~ang~~govenred^  more stringent 
standard. See Wilson, Control of Class Action Abuses Through Regu-' 
laiion o f  Communications, 4 Class Action Reports 632, 634 (1975).

We also find Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 
2898, 61 L.Ed.2d 608 (1979), and its antecedent inapposite. We are 
dealing here not with the right of reporters to gather information 
but with the right of individuals to disseminate it. See, e. g., 
Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 
(1978); U. S. v. Gurney, 558 F.2d 1202 (5th Cir. 1977), cert, 
denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978). Pro
tecting secrecy by excluding the press is not to be equated with 
preventing publication. See Sack, Principle and Nebraska Press As
sociation v. Stuart, 29 Stan. L. Rev. 411, 428 (1977); Stevens, 
Some Thoughts About A General Rule, 21 Ariz. L. Rev. 599 (1979)!



261

principals govemm2__imor restraints,29 See Rodgers v. 
U. S. Steel Corp., 536 F.2d 1001, 1008 (3d Cir. 1976) 
(Rodgers II) (suggesting, in context of class action, that 
test is “clear and present danger or a reasonable likeli
hood of a serious and imminent threat to the administra
tion of justice”). The validity of a prior restraint entered 
under Rule 23 must be tested by the same standards 
utilized in other contexts. Subdvision (d) of Rule 23, 
which authorizes the court, in its discretion, to make ap
propriate orders in class actions, was designed to further 
“the fair and efficient conduct of the action . . . Ad
visory Committee Notes to Rule 23. Like the common 
law contempt power at issue in Craig v. Harney, 331 
U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947), and 
Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 
L.Ed. 192 (1941), the court’s discretion under Rule 23 
is a facet of its general authority to regulate the conduct 
of litigation. To the extent that Rule 23 implements the 
class action as a unique litigation device, that discretion 
may be correspondingly broadened, and we recognize 
broad management powers of the court under Rule 23. 
Buf7~winle a legislative enactment may alter the court’s 
authority under common law, it may not encroach upon 
constitutionally protected rights. Prior restraints are no 
less suspect in a statutory setting than they are in a con
stitutional context. Allen v. Monger, 583 F,2d 438, 442 
(9th Cir. 1978), pet. for cert, filed sub nom., Brown v. 
Allen, — U.S. —, 100 S.Ct. 1003, 62 L.Ed.2d 745 
(1978). We cannot interpret Rule 23 as authorizing

29. The district court never certified a class in this case. Arguably 
a court may have broader power over an actual class action than a 
putative class action, but the presence or absence of certification 
does not materially affect the considerations that we view as con
trolling.



262

prior restraints without rewriting the First Amendment 
and the gloss put upon it by the Supreme Court. This, of 
course, we are not at liberty to do. Moreover, the Rules 
Enabling Act, 28 U.S.C. § 2072, explicitly provides that 
the Rules “shall not abridge, enlarge or modify any sub
stantive right.” Finally, much of the communication pro
hibited by the order is both constitutionally protected 
and consistent with the purposes of the class action. See 
Coles v. Marsh, 560 F.2d 186, 189 (3d Cir.), cert, de
nied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 
(1977); n.30 infra.

[29-30] An exception to the constitutional principles 
limiting prior restraints cannot be construed on the 
foundation of asserted potential abuses in class actions 
generally. In the first place, the hypothesis that abuses 
occur with such frequency and impact that prophylactic 
judicial intervention is required must be examined with 
th’e ’sanie scrutiny as other factual hypotheses. Neither 
the Constitution nor the judge’s duty of constitutional 
fact finding is subsumed by the application of the pe
jorative word “abuse.” Not everything that tends to make 
a class action less convenient than ideal, or more difficult 
to manage, is an “abuse.” The same is true of such ac
tivities as solicitation of clients, or funds, or community 
support, that may be constitutionally protected but, at 
least to some, may appear only marginally ethical.30 The

30. In Coles v. Marsh, 560 F.2d 186 (3d Cir.), cert, denied, 
434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977), a race/sex 
discrimination in employment case, the basis for an order banning 
communication by plaintiff and her lawyer was plaintiff’s deposition 
in which she indicated that she had contacted and would continue 
to contact potential class members with the hope of interesting them 
in participating in the suit and had contacted the NAACP to enlist 
its support, financial and otherwise, and proposed to contact other



263

frequency and the effect of genuine abuses in class ac
tions in general are not revealed by any empirical data 
made known to us. and judges may differ widely in their 

..individual assessments. The Manual expressly recognizes 
that “abuse” of the class action is a rare occurrence, an 
exception and not the rule:

It must be noted, however, that, generally, the ex
perience of the courts in class actions has been 
favorable. The aforementioned abuses are the ex- 

^mtiflnsuLn.._di^nclion litigation rather than the 
Nevertheless, they support the idea that it is 

appropriate to guard against the occurrence of these 
relatively rare abuses by local rule or order.

Manual, Part I, § 1.41, p. 31 (1977 ed.). Its rationale 
is that it is desirable to anticipate and prevent these in
frequent occurrences before they happen.31

In any event, the potential abuse rationale is at odds 
with the requirement that a prior restraint is only justified 
in exceptional circumstances and by a showing of direct, 
immediate and irreparable harm. Whether such a show
ing can be made may be affected by a host of factors: 
the occurrence of misconduct or the threat of it, the 
composition and size of the claisTthe nature of the claim,

organizations for the same purpose. The Third Circuit rejected the 
argument that these were abuses and held they affectuated the pur
poses of Rule 23 by encouraging participation in plaintiff’s race/sex 
discrimination claim and that the district court had no power to 
restrain them.

31. Compare Bulletin of Recent Developments, Manual for Com
plex Litigation, Aug. 25, 1978, p. 7:

Experience continues to teach that, because of the vast and ever
present potential for abuse of the class action through unauthor
ized communications in many unpredictable forms, it is danger
ous to await the occurrence of an abuse before trying to correct 
it.



264

_4he historical policies of the district court in administer
ing class actions, the identity, experience and standards 
of the lawyers, the mores of the bar, the necessity for dis
covery and many others. None of the four major poten
tial abuses listed by the Manual presents any direct or 
immediate threat to the litigation in this case. Solicitation.

pp. 471-473, supra. The possihiliiSL-of^ of
funds is controverted by affidavits. See n. 25 supra. So- 

*" licitation of opt-out requests is not relevant to this Rule 
23(b)(2) case. Finally, nothing justifies any inference 
in this case that communications are likely to “misrep
resent the status, purposes and effects of the . . . action 
and of . . . [the] Court orders therein/!

[31] There are other prerequisites to justification of 
a prior restraint. It must not sweep too broadly. Rather 
it “must be narrowly drawn and cannot be upheld if 
reasonable alternatives are available having a lesser im
pact on First Amendment freedoms.” CBS, Inc. v. Young, 
522 F.2d 234, 238 (6th Cir. 1975); see also Nebraska 
Press Association v. Stuart, supra; Carroll v. Commis
sioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 
L.Ed.2d 325 (1968). There are alternatives to a total 
ban on communications. See n. 13 supra; Developments 
in the Law— Class Actions, 89 Harv.L.Rev. 1318, 1600- 
1604 (1976); Wilson, Control of Class Action Abuses 
Through Regulation of Communications, 4 Class Ac
tion Reports 632 (1975). The order before us suppresses 
essentially everything, and one seeking to exercise his 
right to speech or association must petition the court.3" 32

32. It is obvious that overbreadth is inevitable under a system 
by which plenary restraints are imposed automatically by rule or 
order in every actual or potential class action.



265

j No showing has been made, or even offered, that reason
able alternatives with lesser impact are unavailable. t

[32] Finally, the restraint “must have been accomp
lished with procedural safeguards that reduce the danger 
of suppressing constitutionally protected speech.” South
eastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at 
559, 95 S.Ct. at 1247, 43 L.Ed.2d at 459. There are none
here: no evidence, no way to test the potential abuse 
premise, n_CLfiMing.s„of particular abuses presenFor threat

ened, and no conclusions of law (except as to the de
sirability of conciliation) . Obviously, there never can be 
procedural safeguards if by rule or order a wholesale 
restraint is directed in every case and those restrained are 
able to escape its impact only by showing good cause to 
be excepted or risking the vagaries of an arguable good 
faith defense.

[33] The remaining justification for the order is the 
district judge’s reference to his obligations to encourage 
private settlement of Title VII charges. U. S. v. Allegheny- 
Ludlum Industries, 517 F.2d 826, 846 (5th Cir. 1975), 
cert, denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 
187 (1976). The notice sent by the clerk gave judicial 
recognition to the conciliation agreement and extended 
the time during which employees could accept Gulfs offer 
while at the same time giving notice of the pendency of 
this suit. But, as we noted in Allegheny-Lpdlum,

the “final responsibility for enforcement of Title VII 
is vested with federal courts,” . . . [T]he various 
legal remedies for employment discrimination are 
cumulative and complementary. From the grievant’s 
standpoint, “[u]nder some circumstances, the admin
istrative route may be highly preferred over the litiga
tory; under others the reverse may be true.”



266

Id. at 848 & n.26, quoting Alexander v. Gardner-Denver 
Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 
147, 156 (1974), and Johnson v. Railway Express 
Agency, Inc., 421 U.S. 454, 461, 95 S.Ct. 1716, 1720, 
44 L.Ed.2d 295, 302 (1975). In Rodriguez v. East Texas 
Motor Freight, 505 F.2d 40 (5th Cir. 1974), vacated on 
other grounds, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 
453 (1977), we commented on the possible divergence 
of governmental interests in remedying employment dis
crimination and the interests of the individuals who were 
the victims of discrimination:

While the Government may be willing to compromise 
in order to gain prompt, and perhaps nationwide, 
relief, private plaintiffs, more concerned with full 
compensation for class members, may be willing to 
hold out for full restituition.

Id. at 66. The choice between the lawsuit and accepting 
Gulfs back pay offer and giving a general release was for 
each black employee to make The court could not make 
it for him, nor should it have freighted his choice with an 
across-the-boardban that restricted his access to dnforma- 
tion and advice concerning the choice. ;

[34, 35] We therefore hold that the district court’s 
order restricting communication by parties and their coun
sel with actual and potential class members is an uncon
stitutional prior restraint.33 * * * * 38 This holding makes it unneces-

33. While we hold that the order is a prior restraint, the un
constitutionality of the order does not rest on that ground alone.
Even under the more relaxed analysis accorded subsequent restraints
the order fails to pass constitutional muster. Much of the order is
vague and overbroad. See n.26 supra; see also Chicago Council of
Lawyers v. Bauer, 522 F.2d 242, 249 (7th Cir. 1975), cert, denied,



267

jiary for us to consider whether the order violates the First 
Aj2^dxxiaftUai>saciation ai righlsL^L-either the individuate 
plaintiffs or their attorneys. tSjee Rodgers I, supra, 508 
F.2d at 163; Great Western Cities, Inc. v. Binstein, supra, 
476 F.Supp. at 834; cf. NAACP v. Alabama ex rel Pat
terson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 
(1958) (requiring NAACP to submit membership lists 
infringes associational rights); Shelton v. Tucker, 364 
U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960) (requir
ing list of organizations to which individual belongs or 
contributes infringes associational rights); Robinson v. 
Reed, 566 F.2d 911 (5th Cir. 1978) (requiring disclosure 
of facts about beliefs or associations infringes rights of 
privacy and association).34 * 81 * * * * * * * 89

427 U.S. 912, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976). Even a 
legitimate governmental purpose “cannot be pursued by means that 
broadly stifle fundamental personal liberties when the end can be 
more narrowly achieved.” Shelton v. Tucker, 364 U.S. 479, 488,
81 S.Ct. 247, 252, 5 L.Ed.2d 231, 237 (1960); see also Village of
Schaumberg v. Citizens for a Better Environment, ____U.S.____
100 S.Ct. 826, 63 L.Ed.2d 73 (1980) (restriction invalid if purpose
“could be sufficiently served by measures less destructive of First
Amendment interests”). Moreover, the circumstances under which
the order was issued do not meet any of the previously articulated 
standards governing restriction of constitutionally protected expres
sion. See, e. g., Village of Schaumberg v. Citizens for a Better En
vironment, supra (regulation “intimately related to substantial gov
ernmental interests”); Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326,
38 L.Ed.2d 303 (1973) (speech “intended to produce, and likely to 
produce, imminent disorder”) ; Brandenburg v. Ohio, 395 U.S. 444,
89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (speech “brigaded with ac
tion”) (Douglas, J., concurring); Bridges v. California, 314 U.S. 
252, 62 S.Ct. 190, 86 L.Ed. 192 (1941) (“clear and present dan
ger”) ; Chicago Council of Lawyers v. Bauer, supra (speech must 
pose “ ‘serious and imminent threat’ of interference with the fair 
administration of justice”).

34. We have also pretermitted discussion of the order’s limita
tions on access to and dissemination of discovery materials as possibly 
implicating both the First Amendment, In re Halkin, supra, 598 F.2d



268

VII. The order violates Rule 23
[36] Because we hold that the order violates the First 

Amendment, it follows that it cannot be an....“ii.DX!.m.D.iiate.-. 
order” under Rule 23(d) of the Federal Rules of Civil 
Procedure.85

The order of the district court restricting communica
tions by named plaintiffs and their counsel with actual 
and potential class members is VACATED, the judgment 
of the district court is REVERSED and the case is RE
MANDED to the district court for proceedings consistent 
with this opinion.

at 188-89, and the due process clause of the Fifth Amendment, 
Gouldman v. Seligman & Latz of Houston, Inc., 82 F.R.D, 727, 
728 (S.D. Tex. 1979). See Waldo v. Lakeshore Estates, Inc., 433 
F.Supp. 782, 787 (E.D. La. 1977); Note, 88 Harv. L. Rev. 1911, 
1919 (1975). The Manual itself notes the risk that barring contact 
with class member-witnesses may violate due process:

In many such cases, the class members will have knowledge of 
facts relevant to the litigation and to require a party to de
velop the case without contact with such witnesses may well 
constitute a denial of due process.

Manual, Part I, § 1.41, p. 29 (1977, carried forward from 1973 ed.).
Additionally, we have not considered whether the order may 

violate the Fifth Amendment privilege against self-incrimination by 
compelling those who may have disobeyed it to produce testimonial 
evidence describing their transgressions. See U. S. v. White, 322 U.S. 
694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944); U. S. v. Auihement, 
607 F.2d 1129 (5th Cir. 1979).

35. Other circuits have reached conflicting conclusions as to the 
propriety under Rule 23 of similar orders. Compare Rodgers I, 
supra with In re General Motors Corp. Engine Interchange Litigation, 
594 F.2d 1106, 1138 n.57 (7th Cir.), cert, denied, 444 U.S. 870, 
100 S.Ct. 146, 62 L.Ed.2d 95 (1979).



269

TJOFLAT, Circuit Judge, with whom JOHN R, 
BROWN, GEE, HENDERSON and REAYLEY, Circuit 
Judges, join, specially concurring:

I concur only in the result because I believe the major
ity’s analysis inexcusably ignores the principle that “a 
federal court should not decide federal constitutional ques
tions where a dispositive nonconstitutional ground is avail
able.” Hagans v. Lavine, 415 U.S. 528, 547, 94 S.Ct. 
1372, 1384, 39 L.Ed.2d 577 (1974). The non-constitu
tional ground that would dispose of the case is that the 
district court abused its discretion when, without making 
findings of fact, it entered the order restricting the parties’ 
and counsel’s communications with actuaT"oF~potentiil' 
class members who were not foimaf parties.

The majority’s analysis begins with an examination of 
the “basis” of the order. The opinion immediately re
jects the notion that the district court’s order could have 
rested on Gulf Oil Company’s unsworn allegations that 
one of the plaintiffs’ attorneys had improperly communi
cated with actual or potential class members who were 
not formal parties: “We can assume that the district 
court did not ground its order on a conclusion that the 
charges of misconduct made by Gulf were true. Nothing 
in its order indicates that it did . . . .” Ante at 466. Even 
if the district court had based its order on a conclusion 
that Gulf’s charges were true, the opinion reasons, “such a 
conclusion would have been procedurally improper and 
without evidentiary support.” Id. Therefore, the majority 
“presumes” that the district court must have based its 
order “upon the rationale of the [Manual for Complex 
Litigation] that the court has the power to enter a ban on 
communications in any actual or potential class action as



270

a prophylactic measure against potential abuses envisioned 
by the Manual.” Id.

Logic and sound jurisprudence insist that the majority 
next consider the procedural propriety and evidentiary 
support of an order founded solely on the rationale and 
model order of the Manual. Instead, the opinion inexplic
ably leaps to the question of the constitutionality of the 
Manual’s suggested order and holds that the order is an 
unconstitutional prior restraint. Since the district court’s 
order was based entirely on the model order and policy 
consideration set out in the Manual, it follows that the 
district court’s order is unconstitutional as well. The 
opinion then belatedly and, in light of the disposition of 
the constitutional issue, somewhat gratuitously turns to 
the question of procedural propriety, concluding that an 
unconstitutional order cannot be “appropriate” within the 
meaning of Fed.R.Civ.P. 23(d).

In my view, the federal policy of avoiding unnecessary 
constitutional rulings requires that this court reserve con
sideration of the first amendment problems that the dis
trict court’s order may raise and address first the question 
of the district court’s authority to issue the order. As 
Judge Godbold persuasively demonstrates in his dissent
ing opinion to the panel decision, the district court mis
used its discretion in entering the order in this case. 
Bernard v. Gulf Oil Co., 596 F.2d 1249, 1262-76, vacat
ed, 604 F.2d 449 (5th Cir. 1979) (Godbold, J., con
curring in part and dissenting in part). Therefore, we 
need not reach the constitutional question.

Rule 23(d) permits district courts, in conducting class 
actions, to “make appropriate orders: . . .  (3) imposing 
conditions on the representative parties . . . .” Although



271

this provision gives a district court “extensive power” to 
manage a class action, 7A C. Wright & A. Miller, Federal 
Practice and Procedure § 1791 at 192 (1972), the orders 
that a court issues pursuant to the rule are certainly sub
ject to review for abuse of discretion. In re Nissan 
Motor Corporation Antitrust Litigation, 552 F.2d 1088, 
1096 (5th Cir. 1977). As this court observed in Nissan, 
“Appellate review is necessary to assure that the rights 
of absentee class members are not inundated in the wake 
of a district court’s brisk supervision.” Id. The review- 
ability of rule 23(d) orders is also implicit in the lan
guage of the rule. The district court is limited to issuing 
those orders that are “appropriate.” If this constraining 
language is to be effectual, rule 23(d) orders must be 
reviewabTe*by"ffie.courts of appeals.

Since rule 23(d) orders are re viewable, it follows that 
such orders must be based on findings of fact:

[Issuance of an order . . . without^ an adequate 
statemen llo l- th a lreasons for the order does not 
meet minimum standards of procedural fairness 

~~ and regidaiitvrTTTRor does an order issued without 
a deliberate articulation of its rationale, including 
some appra!sarofThe"Tadtbr^^ court’s
decision, allow for a disciplined and informed re
view of the court’s discretion.

Sergeant v. Sharp, 579 F.2d 645, 647 (1st Cir. 1978) 
(citations omitted) (vacating and remanding district 
court’s order denying attorney fees to successful civil 
rights plaintiff). Cf. Fed.R.Civ.P. 52(a) (“in granting 
or refusing interlocutory injunctions the court shall simi
larly set forth the findings of fact and conclusions of law 
which constitute the grounds of its action”).



272

The general principle restated by the Sargeant court 
applies to any court order that is based on the court’s as
sessment of conflicting evidence or policy considerations. 
I see no reason to suppose that the principle is not per
tinent here. A request for a rule 23(d) order restricting 
communications between counsel and potential or actual 
class plaintiffs is not essentially different from an ordi
nary petition for a preliminary injunction.1 Communica
tions like those prohibited by ithe district court’s order 
certainly create a potential for abuse, but they may also 
be beneficial. For example, such communications, “in 
many instances serve to effectuate the ‘purposes of Rule 
23 by encouraging common participation in [a lawsuit].’ ” 
Bernard v. Gulf Oil Co., 596 F.2d at 1268 (Godbold, J., 
dissenting) (quoting Coles v. Marsh, 560 F.2d 186, 189 
(3d Cir.), cert, denied, 434 U.S. 985, 98 S.Ct. 611, 
54 L.Ed.2d 479 (1977). Just as if it had been faced with 
a request for an injunction, the district court should have 
ruled on Gulf’s motion for an order restricting communi
cations only after weighing, on the record, the potential 
for abuse that would be generated by permitting free 
communications between the parties and class members 
against the benefits flowing from such communications.

1. Judge Godbold makes this point nicely in his panel dissent: 
The wide disparity between what was done here and normal 

judicial procedures is demonstrated by posing this question: 
“What would have happened if Gulf had asked for a temporary 
injunction imposing the exact restrictions that were imposed in 
this case?” I believe that the court would have insisted upon 
requirements of notice, time limits, proof of likelihood of harm, 
the public interest and similar familiar requirements, and this 
court would have reviewed an injunction under the usual stand
ards, especially since constitutional rights are involved.

Bernard v. Gulf Oil Co., 596 F.2d 1249, 1270, vacated 604 F.2d 
449 (Sth Cir. 1979) (Godbold, J., concurring in part and dissenting 
in part).



273

As in the ordinary case involving a request for a tem
porary injunction, the burden of proof would be on the 
movant—here. Gulf. To'meet Its "Burden of proof, Gulf 
would have to make “a factual showing . . . that un
supervised communications between counsel and named 
plaintiffs on one hand and potential class members on the 
other have materialized into actual abuses of the class 
action device or that abuses are imminently threatened.” 
Bernard v. Gulf Oil Co., 596 F.2d at 1267 (Godbold, J., 
dissenting).

As the majority opinion notes, the district court en
tered the order in this case without making any findings of 
fact. The only “evidence” Gulf presented that the re
stricted communications would lead to abuses was un
sworn allegations of misconduct on the part of one of the 
class attorneys, and the accused attorney denied the 
charge under oath. Even if the district court had explicitly 
based its order on Gulf’s charges, I would find that entry 
of the order was an abuse of discretion on the ground 
that Gulf had not conceivably met its burden of prop?. 
It is still more clear that the Court abused its discretion 
by issuing the order without elucidating any factors that 
contributed to its decision.

The absence of any findings of fact leads the majority 
to conclude that the district court founded its order on 
the Manual for Complex Litigation’s model order and 
rationale. Ante at 466. In my view, the record does not 
adequately support this conclusion. The district court 
cited the Manual not to justify the imposition of the 
order, but to defend the order from plaintiffs’ First 
Amendment attack: “[T]his order comports with the 
requisites set out in the Manual for Complex Litigation,



274

Section 1.41, p. 106 CCH Edition 1973, which specif
ically exempts constitutionally protected communication 
when the substance of such communication is filed with 
the Court.” Record at 128e. The court’s mere mention
ing of the Manual obviously does not constitute the de
liberate articulation of rationale that is necessary if there 
is to be any possibility of meaningful review.

Moreover, even if the court had relied explicitly on the 
rationale of the Manual’s model order to support the 
order, the court’s entry of the order would have been 
procedurally improper. s The Manual is not a source of 
authority with the force of a statute or rule of civil pro- 

xedure^Therefore, a trial court could not evade its re- 
~"sponsibility to make findings of fact on the record simply 

by relying on the Manual. In other words, it would have 
been an abuse of discretion for the court to have adopted 
the Manual’s apparent conclusion that a court order re
stricting communications is appropriate in every class 
action. This is because |the validity of the Manual’s analy
sis and conclusion is not the sort of undisputed know-

notice., Since there is reason to believe that communica
tions between counsel and actual and potential class 
members are not always abusive of the class action de
vice, “[t]he Manual’s general discussion of potential 
abuses flowing from unrestrained communications is no 
substitute for reasoned inquiry into the harms and bene
fits on the particular facts of each case.” Bernard v. Gulf 
Oil Co., 596 F.2d at 1268 (Godbold, J., dissenting).2

2. Of course, there are some communications that a court may 
restrict, in the interests of the administration of justice., without 
making findings or even considering the facts of the particjilax„x̂ ,se. 
For exampleTa~TnaX"Tuhgem a^^ "members of the



275

For the reasons I have stated, I would hold that the 
district court abused its discretion when it entered the 
order restricting communications. I think this conclu
sion is unavoidable, whether the order is viewed as based 
upon the trial judge’s assessment of the particular case be
fore him or as based on the Manual’s general discussion 
of potential abuses. Therefore, I must regard the major
ity’s first amendment analysis as a needless excursion 
into a difficult and little-explored area of constitutional 
law.®

jury not to discuss a case with anyone while the trial is in progress.
’’The crucial difference between this example and Lllh  case lit to re" ”us" 
is that, first amendment considerations aside, there could be no 
purpose served by permitting the jury to discuss a case during the 
trial, while it is not open to question that such communications 
would always pose an imminent threat to the fair administration of 
justice. On the other hand^ communications like those enjoined in 
the present case migEt~actuaIly~benefit tfuTTudkial process TEFough 
serving the.-rule IS policy of encouraging common participation "in 
a lawsuit^See p. 464, suprai........ — ....— -.......

3. Although the majority concludes that the order in this case 
was an unconstitutional prior restraint, the opinion certainly does 
not preclude a district court’s entering an order similar to the 
Manual’s model order after making a proper finding of facts. The 
majority condemns only restrictions of communications “constructed 
on the foundation of asserted potential abuses in class actions gen
erally,” ante at 475, and admits that a “prior restraint” may be 
justified “by a showing of direct, immediate and irreparable harm.” 
Ante at 476.



276

FAY, Circuit Judge, with whom COLEMAN, Chief 
Judge, and RONEY, Circuit Judge, join, special con
curring statement:

The majority of the en banc court adopts parts I, II 
and III of the panel opinion found at 596 F.2d 1249. As 
to the order dealing with communications by named 
parties and their counsel with any actual or potential 
class member not a formal party, I adopt parts I and II 
of Judge Godbold’s original opinion, concurring in part 
and dissenting in part from the panel majority. 596 F.2d 
at 1262. In my opinion the order was “inappropriate” 
under Rule 23 and an abuse of discretion in this case. 
So concluding, I would not reach the constitutional issues.

JAMES C. HILL, Circuit Judge, dissenting:
I cannot agree that an order restricting the conduct of 

attorneys and their clients in connection with an ongo
ing lawsuit should be scrutinized under the First Amend
ment. I believe that during the pendency of a lawsuit the 
judge may restrict speech and conduct which in a dif
ferent setting would be protected by the First Amend
ment. A precedent which requires that such orders be 
scrutinized under the First Amendment is a dangerous 
one with the potential for consequences not intended 
by the majority.

The propriety of this order should be tested only under 
Rule 23’s appropriateness standard. Under the facts of 
this case, I would hold that the order was appropriate.



277

JUDGMENT ON REHEARING EN BANC 

[Caption Omitted in Printing]

Filed July 17, 1980

Before COLEMAN, Chief Judge, BROWN, GOD- 
BOLD, RONEY, GEE, TJOFLAT, HILL, FAY, 
RUBIN, VANCE, KRAVITCH, FRANK M, JOHN
SON, JR., GARZA, HENDERSON, REAVLEY, PO- 
LITZ, HATCHETT, ANDERSON, RANDALL, TATE, 
SAM D. JOHNSON and THOMAS A. CLARK, Circuit 
Judges.*

This cause came on to be heard on the transcript of the 
record from the United States District Court for the 
Eastern District of Texas, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here 
ordered and adjudged by this Court that the order of the 
District Court appealed from, in this cause be, and the 
same is hereby, vacated; the judgment of the said District 
Court is hereby reversed, and this cause be, and the same 
is hereby remanded to the said District Court in accord
ance with the opinion of this Court;

It is further ordered that defendants-appellees pay to 
plantiffs-appellants, the costs on appeal to be taxed by 
the Clerk of this Court.

June 19, 1980

* Judges Goldberg, Ainsworth and Charles Clark did not par
ticipate in the consideration or decision of this case.



27 8

Tjoflat, Circuit Judge, with whom Brown, Gee, Hender
son and Reavely, Circuit Judges, join, concurring in the 
result.
Fay, Circuit Judge, with whom Coleman, Chief Judge, 
and Roney, Circuit Judge, join, specially concurring.
Hill, Circuit Judge, dissenting.

Issued as Mandate: July 15, 1980

Clerk, U.S. Court of Appeals,
Fifth Circuit

By: BRENDA HAUCK 
Deputy
New Orleans, Louisiana



279

ORDER ALLOWING CERTIORARI 

[Caption Omitted in Printing]

Filed December 8, 1980

The petition herein for a writ of certiorari to the United 
States Court of Appeals for the Fifth Circuit is granted 
limited to Question 1 presented by the petition.
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